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.