Friday, December 20, 2013

The Bill of Rights Doesn’t Apply to the States

Rightly or wrongly, one of my favorite articles I wrote for Beards of Fury was “Religion and the Government.” It’s my favorites because I think it was somewhat well written, it defended my point well, and it started a healthy debate, and that’s what I want to address here. One of the biggest points used to discredit my thesis was that the First Amendment does mean the federal government can’t even endorse religion and that, through the Fourteenth Amendment, the First Amendment applies to the states. Let’s assume that the First Amendment does mean the federal government can’t endorse religion; it still doesn’t mean the First Amendment applies to the states via the Fourteenth Amendment.

Exhibit A is the Blaine Amendment. The Blaine Amendment, which was proposed in 1875, states: “No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.” For reference, the Fourteenth Amendment passed in 1866. If the Fourteenth Amendment meant the Bill of Rights applied to the states why was this amendment proposed?

Now, some people will say, “It’s the Due Process Clause that incorporates the Bill of Rights to the states via the Fourteenth Amendment. I’ll let Lawrence Vance provide Exhibit B. Go ahead Mr. Vance: “If the Fourteenth Amendment ‘incorporates’ the Fifth Amendment, then why did the framers of the Amendment find it necessary to repeat verbatim the ‘due process [sic]’ clause of the Fifth Amendment?”

Finally, some say, “No, it’s the Privileges and Immunities Clause that incorporates the Bill of Rights to the states via the Fourteenth Amendment.” Well, enter Exhibit C and Mr. Vance one more time: “The ‘privileges or immunities [sic]’ of the Fourteenth Amendment couldn’t possibly be a reference to the rights enumerated in the Bill of Rights for the simple reason that it had a history of contrary usage before the Fourteenth Amendment was ever thought of; the privileges and immunities preceded the Bill of Rights.”

So, the bottom line is that the First Amendment, no matter what it says, applies only to the federal government.


  1. While the founders plainly drafted the First Amendment to constrain the federal government as you note, they certainly understood that later amendments could extend the Bill of Rights' constraints to state and local governments. As it turns out, that is what happened.

    You disagree with the Supreme Court's interpretation of the 14th Amendment. As the Amendment, which guarantees individual rights against infringement by states, including equal protection and due process of law and the rights and privileges of citizenship, did not come with a handy glossary of terms explaining exactly what rights are encompassed within those terms, the Court quite naturally and reasonably looked to the Bill of Rights, reasoning that there are found the rights we hold most fundamental. It has ruled that at least some of those, including freedom of religion and freedom from government established religion, are protected by the Amendment from state infringement. If you object to that, I'm curious where you (or Lawrence Vance) would have the Court draw the line. The Amendment cannot mean nothing, so a line must be drawn somewhere to establish what is in and what is out. The Court only recently decided, for instance, that the 2nd Amendment affords an individual right to possess a firearm, unconnected to service in a militia, and that the 14th Amendment protects that right from infringement by states. Would that one make your cut?

    You make much of the Blaine Amendment, and wonder why some of those who participated in adopting the 14th Amendment would propose a new amendment to do the very same thing that the Supreme Court later held the 14th Amendment does. Your speculation, you suppose, reveals something of the intent of the 14th Amendment. Hardly.

    The Blaine amendment was proposed by some in Congress in 1875, but did not pass. Those proposing the amendment were hardly the same people who proposed the 14th Amendment a decade earlier, let alone the same people who ratified the 14th Amendment. Given these differences, it would take a leap of faith to deduce anything from the 1875 Congress's failure to act on the Blaine Amendment about the 1865 Congress's intent in adopting the 14th Amendment.

    In any event, even if one looks past that problem, courts have often considered what to make of a legislature's inaction, e.g., its failure to propose or enact or amend a law, and generally have regarded that of little use in discerning even that legislature's intent, let alone the intent of an earlier legislature. One reason is that one can posit any number of possible reasons legislators may fail to act. They may, as you seem to suppose, consider that a proposed law (e.g., the Blaine amendment) would be needed to accomplish a particular purpose, but decide against doing it because they oppose that purpose. Equally plausible, they may decide against proposing or enacting a law because they think the law already covers a certain point and thus passing another law to again cover it is unnecessary. Alternatively, they may simply not think much about the subject one way or the other, and thus not take any action on it, or they may like the aim of an amendment but oppose some particular language or aspect of it, or they may want to couple it with some other ideas, or they may want to wait to see what the courts do with the 14th Amendment after the Slaugherhouse cases, or they . . . etc. The point is that there are many other possibilities than the one that looms so large in your mind, and there is no way--apart from speculation--to say with any confidence what Congress's inaction on the Blaine amendment reveals about the intent of those who drafted, or even less those who ratified, the 14th Amendment.

    1. Doug, can you point me to the case or year where the Court only recently decided, for instance, that the 2nd Amendment affords the individual right to possess a firearm, unconnected to service? Individuals have owned firearms since the Bill of Rights was written. Not to mention that a militia has always been made up of individuals. A militia by definition is an army or fighting force made up of citizens and not professional soldiers.

    2. From Sergio Leonard:

      Doug, you state, "Those proposing the amendment were hardly the same people who proposed the 14th Amendment a decade earlier, let alone the same people who ratified the 14th Amendment." James Blaine, who proposed the Blaine Amendment, was a member of the House of Representatives from 1863 to 1876; surely he knew what the 14th amendment meant. The fact the he proposed the amendment, and that all but 11 state legislatures created "Little Blaine Amendments" when it failed shows the Bill of Rights is not incorporated to the states by the 14th Amendment. Why lawyers and judges refuse historical context is baffling when trying to find intent.

      Second, you write the 14th Amendment "did not come with a handy glossary of terms explaining exactly what rights are encompassed within those terms." It did. The purpose of the amendment was to let state governments know that the freed slaves are citizens of the United States and the states which they reside. Therefore, when they wrote they enjoyed privileges and immunities in the states, they copied Article Four, Clause One, Section Two, which was lifted from Article Four of The Articles of Confederation, which was interpreted by the Supreme Court in 1823 in Corfield v. Coryell that states may not discriminate against citizens of other states in favor of its own citizens. And due process for these freed slaves means what due process has always meant: no punishment without a trial.

    3. Anonymous,

      The Supreme Court decided in District of Columbia v. Heller (2008) that the 2nd Amendment protects an individual right to possess and carry firearms and in McDonald v. Chicago (2010) that the 14th Amendment applies the Second Amendment to state governments.


      Courts do not “refuse historical context” when interpreting the law. Indeed, just the opposite, they consider it quite carefully. They refuse, though, to indulge in speculation of the sort you suggest.

      As for your suggestion that the 14th Amendment effectively came with a glossary explaining exactly the rights encompassed within its terms, surely you jest. Judicial interpretation and due process of law are large two large subjects, each with a substantial body of law. They cannot be reduced to a bumpersticker of the sort you suggest. For instance, as early as 1897, the Supreme Court decided in Allgeyer v. Louisiana that the due process clause provided protection for contracts—freedom of contract—and in 1923 held in Meyer v. Nebraska that the liberty the clause protects "[w]ithout doubt...denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Find that in your bumpersticker/glossary.

    4. Courts don't refuse historical context, but refuse to speculate? Awesome. Then, as you know, according to the Constitution, 3/4 of the states must ratify an amendment for it to become part of the Constitution; however, when it was sent for ratification, ten of the southern states (Tennessee the exception) rejected the amendment, thus making it a failure. So, the Congress Passed, against Andrew Johnson's veto, the Reconstruction Act of 1867, declaring the south had no representative government (but somehow they had it when the ratified the Thirteenth Amendment) and became military districts. Never mind the Constitution states no state will be denied representation. If the south wanted representation back, they had to ratify the amendment (why a state who wasn't in the union had to ratify amendments is peculiar). The southern states did as they were told, but this caused New Jersey, Ohio, and Oregon to rescind their vote for ratification, thus meaning the amendment failed again. But Secretary of State Seward said, to heck with it, and said it passed anyway. This led Oregon's state legislature to claim the Fourteenth Amendment was never ratified, that the South's ratifications were "usurpations, unconstitutional, revolutionary and void." And if you think states couldn't change their minds, Oregon concluded, "until such ratification is completed, any State has a right to withdraw its assent to any proposed amendment." Judge L.H. Perez even wrote a whole book on the amendment's unconstitutionality.

      So the question is: if the amendment is unconstitutional, why are courts referencing it as law?

    5. I understand there is controversy about the ratification of the 14th Amendment. A discussion of that would take us far afield from the subject of this post. I understand that the Supreme Court has considered that controversy to be a non-justiciable political question for the political branches of government and, given their acceptance of the Amendment, has for well over a century considered the 14th Amendment to be a valid part of the Constitution.

  2. Compliments of Sergio: Here's something for you about the 14th:

    "Among the groups most significant in developing this ideology was the Ku Klux Klan. When the Klan was reborn in the 1920s, it pushed especially hard for a 'wall of separation between church and state.' Practically, this meant that government should deny support to Catholic
    schools, which were seen as un-American.

    Perhaps the people could not be persuaded to amend the Constitution the constitutional way, but the Supreme Court still could accomplish the same goal. How surprising is it, then, that the Supreme Court justice who wrote the idea of 'a wall of separation between church and state' into American constitutional law — that is, into the body of Supreme Court precedents implementing the Constitution — was a devoted Klansman, Justice Hugo Black of Alabama, and that that Klansman long had expressed support for the anti-Catholic ideology of the Klan?

    Black wrote the majority's opinions in Everson v. Board of Education (1947), which first made 'a wall of separation' the guiding metaphor in this area of 'constitutional law,' and in
    Engel v. Vitale (1962), which banned voluntary non-denominational prayer from public school. Black said that the Fourteenth Amendment's Due Process Clause, which guarantees that no one will be fined, imprisoned, or executed by a state without a hearing, bans such
    prayer. (Yes, that is what he said.)"

    That's right, the guy who decided the 14th applied to the states was an anti-Catholic, KKK member who disliked the idea of state governments giving Catholics money.

    I'm sorry if I'm suspicious that that amendment applies to the states.

  3. The KKK-anti-Catholic smear against Justice Black is sometimes offered as an explanation for his opinion in Everson v. Board of Education, evidently in an effort to associate and thus taint the principle of separation of church and state with bigotry. The effort is specious.

    First, nothing in Justice Black’s opinions remotely supports that claim.

    Second, those pointing to statements by KKK supporters favoring the separation of church and state (leaving readers to draw the inference that the principle is somehow born of those sharing their prejudices) gloss over the fact that the principle has long been so widely supported in American society that one could find and offer such statements supporting the principle from nearly every and any quarter. KKK members thus are hardly alone or special in their support of the principle; non-bigots supported it as well.

    Third, the further notion that the Supreme Court's recognition of the constitutional separation of church and state in Everson is all Justice Black's doing as part of some KKK anti-Catholic conspiracy is laughable. It bears noting that all nine justices in the Everson case read the Constitution to call for separation of church and state, and indeed all of the parties and all of the amici curiae (including the National Council of Catholic Men and National Council of Catholic Women) did as well; no one disputed the principle, they differed only in how it should be applied in the circumstances of the case.

    Fourth, in Everson, Black led the majority of five in holding that the principle of separation of church and state did NOT preclude state funding of transportation of students to parochial schools. The four dissenters would have applied the principle more strictly to preclude such funding.

  4. Doug, let's go ahead and say Black's bigotry should carry no weight. He claimed the Due Process Clause incorporated the Bill of Rights to the states; when did he find the new meaning of due process, which used to mean no punishment without a trial?

    You claim, "...the separation of church and state (leaving readers to draw the inference that the principle is somehow born of those sharing their prejudices) gloss over the fact that the principle has long been so widely supported in American society ..." Why did official state churches exist before and after the ratification of the Bill of Rights?

    Also, in United States v. Cruikshank (1876), the Supreme Court ruled the First and Second Amendments applied only to the Federal Government and not state governments; would it logically follow that the Bill of Rights don't apply to the states based on this decision?

  5. First, due process has never meant merely no punishment without a trial. See the 5th Amendment and cases implementing it, for instance.

    Second, I’m not sure what you have in mind by suggesting that Black found new meaning in the due process clause by interpreting it to incorporate rights protected in the Bill of Rights. He was hardly alone or first in reaching such a conclusion. The Court first "incorporated" an aspect of the First Amendment (freedom of speech) into the 14th Amendment in 1925. Then came freedom of the press (1931), freedom of assembly (1937), and free exercise of religion (1940). In 1947, the Court held that the separation of church and state principle of the First Amendment applies to the states through the 14th Amendment.

    That’s just the First Amendment. In 1897, 29 years after adoption of the 14th Amendment, the Court decided that it encompasses a right in the Bill of Rights (the 5th Amendment right to just compensation). (Chicago, Burlington & Quincy Railway Company v. Chicago, 166 U.S. 226 (1897).) Other aspects of the Bill of Rights have since been incorporated into the 14th Amendment in the 1950s, 1960s, 1970s, 1980s, etc., right up to 2008 and 2010 when the Court decided the Second Amendment provides an individual right to possess a firearm, unconnected to service in a militia, and the 14th Amendment protects that right from infringement by states. No one can seriously suppose that all of these decisions over more than a century can be chalked up to Justice Black and some KKK thing.

    Third, when I pointed out that separation of church and state was widely supported in society in order to counter the impression that it was somehow a KKK idea, I had in mind the decades leading up to the Everson decision in 1947.

    To address your question, though, why some states had official churches at the time of the founding, it should be noted that the Constitution and Bill of Rights limited only the federal government in this regard. It is instructive to recall that the Constitution's separation of church and state reflected, at the federal level, a "disestablishment" political movement then sweeping the country. That political movement succeeded in disestablishing all state religions by the 1830s. It is worth noting, as well, that this disestablishment movement largely coincided with another movement, the Great Awakening. The people of the time saw the trend to separation of church and state as a boon, not a burden, to religion.

    This sentiment was recorded by a famous observer of the American experiment: "On my arrival in the United States the religious aspect of the country was the first thing that struck my attention. . . . I questioned the members of all the different sects. . . . I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet a single individual, of the clergy or the laity, who was not of the same opinion on this point." Alexis de Tocqueville, Democracy in America (1835).

    Fourth, as for United States v. Cruikshank, you query whether it logically follows from that decision that the Bill of Rights does not apply to the states. Such an argument could be made if that case is given a rather broad reading. Regardless of whether the case warrants such a reading, the Court has since decided many cases that overturn or depart from that decision. Whatever remaining force one may accord that case and whatever one may think of the limited incorporation doctrine, the Court simply cannot avoid the question of determining what rights are and are not protected from infringement by the states under the 14th Amendment. In other words, even if one chucked the idea of incorporation, the question would remain whether due process protects against taking property without just compensation, freedom of speech, etc.

  6. Doug,

    Congressman Bingham proposed the amendment to the 39th Congress and they rejected it, saying in debate that it destroyed federalism. So he came with a second draft, and stated in debate that it enforced the Civil Rights Act and that it did not take away states' rights. It passed.

    After the amendment passed, Bingham stated the amendment incorporated the Bill of Rights to the states, to which Congressman Storm replied, "If the views now announced by [Bingham]... had been hinted at, that amendment would have received an emphatic rejection..." Clearly the ratifiers did not see the Bill of Rights applying to the states in the amendment.

    After the ratification of the amendment, the Court unanimously held the Fifth and Sixth Amendments didn't apply to the states in Twitchell v. Pennsylvania (1869) and in Justices v. Murray (1870) that the Seventh Amendment didn't apply to the states.

    As far as the Blaine Amendment, Congressmen Blaine was on the committee that drafted the Fourteenth Amendment. Twenty five members of the 44th Congress were members of Congress when the amendment was drafted and ratified. Fifty members of that Congress were state legislatures during the amendment's ratification. During the debate on the Blaine amendment, it was claimed the amendment would take away states' rights; it failed. After the failure of this amendment, it was proposed another 19 times.