RUNDLE: Policy pushes secret agenda
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The school board in Spencer is undertaking an exciting new experiment, testing the turbulent waters of religion, and politics by attempting the nigh-impossible: Can they make their public schools into Christian schools without anyone noticing?
On the surface, the proposed “religious liberty policy” looks rosy and all-American. The board describes it as an attempt to clear up confusion regarding how religion can and can’t be addressed in public schools.
Van Wyck, a pastor and school board member who co-drafted the proposed policy, had this to say:
“What ends up happening is, both staff and students end up checking their faith at the door because everybody’s afraid to say anything at all. Nobody wants to get in trouble. So, we want to put it out there, in a clear way, that we don’t expect students to check their faith at the door.”
Such a policy would clear up a lot of confusion, and in some areas, the policy meets this goal well. For example, it explains that teachers and other school employees will maintain “officially neutral positions on religious issues while performing official duties,” but goes on to state that they are free to answer private questions about their personal faith.
However, the policy does make some changes, and begins to deviate from acceptable limits. The policy states that no student expression can be regulated on religious content and that “speeches by private individuals will not be regulated on religious content.”
This means any sermon is fair game. The school would be free to use its resources to act as a church, bringing in leaders of a particular religion to preach to an audience of students.
Enabling a public school to be used as a pulpit in this way is unacceptable. As a public government entity, the school has an obligation to remain neutral on religious matters.
Where the policy truly shows its roots is in its proposed additions to the curriculum. It begins with a note that the approach “must be academic, not devotional,” and adds that such courses “shall demonstrate respect for affected religious convictions.” What exactly do they plan to add to the curriculum?
Two electives for the high school: a Bible course and a “Critic of Darwinism” class. How wonderfully balanced.
Despite the school’s goals, the Bible course it has selected, “The Bible in History and Literature,” is nothing if not biased. The course curriculum is the work of the National Council On Bible Curriculum in Public Schools, which does not have a strong history.
Back in 1996, its curriculum was thrown out of a Florida district in Gibson v. Lee County School Board, on the grounds that it was created with intent “to promote religion generally and Christianity specifically.” Last year, its curriculum was thrown out of Odessa, Texas, on charges that it explicitly promoted a specific brand of Christianity and was, according to the lawsuit, “improperly designed to promote religious instruction.”
The “Critic of Darwinism” class is equally suspect. While the proposed policy says the class would be “a scientific approach” that would “provide a balanced review of evidence for and against the theory of evolution,” the proposed text suggests otherwise. It recommends Michael Behe’s “Darwin’s Black Box,” a book that advocates intelligent design due to “irreducible complexity.”
Sadly for Behe, his nonsense has been discredited for years. He himself admitted during Kitzmiller v. Dover Area School District that there was no actual original research in his book, nor any peer-reviewed articles providing rigorous support of intelligent design.
The Spencer school board’s proposed policy looks innocent enough, but its effects would be disastrous for religious liberties in the district. Unfettered religious conversion and explicit promotion of a specific religious agenda are the real goals.
When it comes to a Religious Liberty Policy for school, let’s stick to the First Amendment.
- Will Rundle is a sophomore in performing arts from Ames
On the surface, the proposed “religious liberty policy” looks rosy and all-American. The board describes it as an attempt to clear up confusion regarding how religion can and can’t be addressed in public schools.
Van Wyck, a pastor and school board member who co-drafted the proposed policy, had this to say:
“What ends up happening is, both staff and students end up checking their faith at the door because everybody’s afraid to say anything at all. Nobody wants to get in trouble. So, we want to put it out there, in a clear way, that we don’t expect students to check their faith at the door.”
Such a policy would clear up a lot of confusion, and in some areas, the policy meets this goal well. For example, it explains that teachers and other school employees will maintain “officially neutral positions on religious issues while performing official duties,” but goes on to state that they are free to answer private questions about their personal faith.
However, the policy does make some changes, and begins to deviate from acceptable limits. The policy states that no student expression can be regulated on religious content and that “speeches by private individuals will not be regulated on religious content.”
This means any sermon is fair game. The school would be free to use its resources to act as a church, bringing in leaders of a particular religion to preach to an audience of students.
Enabling a public school to be used as a pulpit in this way is unacceptable. As a public government entity, the school has an obligation to remain neutral on religious matters.
Where the policy truly shows its roots is in its proposed additions to the curriculum. It begins with a note that the approach “must be academic, not devotional,” and adds that such courses “shall demonstrate respect for affected religious convictions.” What exactly do they plan to add to the curriculum?
Two electives for the high school: a Bible course and a “Critic of Darwinism” class. How wonderfully balanced.
Despite the school’s goals, the Bible course it has selected, “The Bible in History and Literature,” is nothing if not biased. The course curriculum is the work of the National Council On Bible Curriculum in Public Schools, which does not have a strong history.
Back in 1996, its curriculum was thrown out of a Florida district in Gibson v. Lee County School Board, on the grounds that it was created with intent “to promote religion generally and Christianity specifically.” Last year, its curriculum was thrown out of Odessa, Texas, on charges that it explicitly promoted a specific brand of Christianity and was, according to the lawsuit, “improperly designed to promote religious instruction.”
The “Critic of Darwinism” class is equally suspect. While the proposed policy says the class would be “a scientific approach” that would “provide a balanced review of evidence for and against the theory of evolution,” the proposed text suggests otherwise. It recommends Michael Behe’s “Darwin’s Black Box,” a book that advocates intelligent design due to “irreducible complexity.”
Sadly for Behe, his nonsense has been discredited for years. He himself admitted during Kitzmiller v. Dover Area School District that there was no actual original research in his book, nor any peer-reviewed articles providing rigorous support of intelligent design.
The Spencer school board’s proposed policy looks innocent enough, but its effects would be disastrous for religious liberties in the district. Unfettered religious conversion and explicit promotion of a specific religious agenda are the real goals.
When it comes to a Religious Liberty Policy for school, let’s stick to the First Amendment.
- Will Rundle is a sophomore in performing arts from Ames
Comments
Lets assume that the “explicit promotion of a specific religious agenda” is the Spencer school board’s end goal.
Yet the provision stating “Congress shall make no law respecting an establishment of religion...” is still not being violated by the local school board, unless one is willing to embrace the ipse dixits and historically unfounded pronouncements by federal courts regarding church/state separation and the U.S. Constitution.
Because the U.S. Constitution leaves the establishment of religion entirely with the states, this article’s author ought to refer to the Iowa Constitution for a more accurate legal argument.
Students are not employees of the school (i.e., not agents of the government). They are free to preach and pray.
Yes . . . as it pertains to the actions of the employees.
That is the history, but wait and see what happens. I've taken courses in religious studies before that in no way promoted religion.
That is just flat-out irresponsibility since "intelligent design" is not a scientific theory, but masked creationism.
It may be true that this is a plot to advocate Christianity. But, we should remember that the First Amendment protects an individual's right to have religious beliefs and to share them. Unless someone is acting as an agent of the state, then they should be considered free to speak.
Those decisions are not unfounded, you just don't like them. They are founded on laws and on justifications that you disagree with.
"Those decisions are not unfounded, you just don't like them. They are founded on laws and on justifications that you disagree with."
Actually, I tend to like the outcomes those Supreme Court decisions produced, at least respecting the prohibition on state actors from forcing certain denominations or religions on me. However, those decisions had nothing to do with “law” at all, and everything to do with judges rewriting the Constitution.
First, it cannot be denied that the Bill of Rights was enacted solely as a limitation on the powers of the federal government, not the states. So when James Madison, chief architect of the Bill of Rights, later wrote that the wide support and insistence of a Bill of Rights demonstrated “a jealousy of Federal powers, and an anxiety to multiply securities against a constructive enlargement of them,” he wasn’t stating anything new. His irrefutable statement is confirmed by the legislative history of the Bill of Rights, and was affirmed by the Supreme Court in Barron v. Baltimore (1833). It also should be obvious from both the phrase “Congress shall make no law...” and the preamble of the Bill of Rights.
(Incidentally, Madison, in the First Congress, actually proposed an amendment that would have enforced religious freedom on the states, but it was rejected. Three states had established churches at the time of the adoption of the First Amendment. Both they and the states with policies of religious freedom wanted to make sure that the new federal government did not interfere with their state religious policies, despite repeated insistence by Federalists, such as Edmund Randolph, that a Bill of Rights was not necessary. Governor Edmund Randolph, framer and leading advocate of ratification, stated in the Virginia convention that “liberty of religion and other rights are secure” because Congress only had the powers “expressly delegated” to it in the Constitution.)
So the question turns to this: When did the people finally agree to adopt an amendment that enforces “church and state separation”? The answer is “never.”
As Charles Fairman and Raoul Berger conclusively demonstrated, the Fourteenth Amendment—the amendment federal courts use to invent all kinds of new rights to be enforced upon the states—had nothing to do with “incorporating” the Bill of Rights. In fact, only seven years after the adoption of the 14th Amendment, Congressman James Blaine proposed the following amendment in Congress: “No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof...” This amendment was voted on by Congress and rejected; not even sent out to the states for their consideration. In a 1951 law review article by Alfred Meyer, it was conclusively demonstrated that the Congress that rejected the “Blaine Amendment” clearly knew that the states and local governments had full discretion over religion, and that they did not want to change that fact. In other words, they (including 14th Amendment framers) had no idea that the 14th Amendment, recently adopted, now enforced limitations on the states regarding religion. The reason is because the 14th Amendment did not, and does not, have anything to do with the subject.
So the people’s representatives at least twice rejected the idea of amending the Constitution to limit state religious policies. But none of this irrefutable history stopped the court, through Klansman and Justice Hugo Black, from rewriting the meaning of the Constitution and forcing us under the arbitrary rule of judicial tyranny. And it probably will not stop people from constantly repeating, ad nauseam, the fallacious idea that the Constitution requires the separation of church and state.
Who cares? Why is a college newspaper printing stuff about an area high school? The classes are electives so they aren't forced on the students. Iowa State (a public institution) offers classes on religion, along with probably every other public university in the country. But seriously, please read the first 2 words of this comment again.
Brian, you still have not demonstrated that any of these decisions you are referring to were unfounded. Please provide an example of one decision regarding church/state separation by the SCOTUS where there was no foundation for the ruling (I can't remember ever reading one where a decision had no basis).
The Constitution clearly prohibits government from promoting certain religious practices.
But rather than debate this to no end, let me ask you a few questions Brian:
Are you in favor of governments promoting religion? Would you be okay with the state of Iowa creating a holiday to recognize and encourage citizens to worship as Muslims do? Or, how about a city that proclaimed praying times to Allah throughout the day? What if the State of Iowa mandated that all business be closed from sundown Friday to sundown on Saturday so as to observe the sabbath? Or what if liquor couldn't be sold on Sundays (oh, wait . . . that law exists in many places already).
Would those kinds of laws be okay with you?
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”
Even though the ratifiers were explained by leading Federalists that Congress only had the powers listed in the Constitution, and that freedom of religion was therefore secure because Congress had no granted power over religion, the ratifiers still insisted on an amendment to make sure Congress did not establish a national church, disestablish a state church, or interfere in any way with religious matters in the states. That is the First Amendment in a nutshell.
Yet the federal government (through federal courts) uses the First Amendment to interfere with state and local religious policies—violating the very purpose of the amendment.
Everson v. Board of Education of Ewing Township (1947): the 1st Amendment requires the separation of church and state
Engle v. Vitale (1962): school prayer prohibited
Wallace v. Jaffree (1985): a moment of silence in school prohibited
County of Allegheny v. ACLU (1989): display of nativity scene by city prohibited, but its display of menorah okay
Lee v. Weisman (1992): clergy-led prayer at graduation prohibited
None of these cases involve the federal government establishing a national church, of course. And no, the 14th Amendment does not require any of these rulings either.
The point is that the U.S. Constitution leaves the issue of religion entirely with the states; the states never surrendered power over the issue. How the people of a state or local government handles the issue is not a federal question at all. In fact, as I have demonstrated above, the people repeatedly rejected the idea of federal oversight over state religious policies. But this does not stop the Supreme Court from enforcing their ideas of what the relationship between government and religion ought to be, using erroneous readings of the Constitution to reach the outcomes they desire.
(Not that its relevant, but I support Iowa’s policy of religious freedom expressed in the Iowa Constitution.)
Brian - perhaps you should answer Harry's questions. They are important to proving that you are not a hypocrit.
"But this does not stop the Supreme Court from enforcing their ideas of what the relationship between government and religion ought to be, using erroneous readings of the Constitution to reach the outcomes they desire."
That's the job of the Supreme Court. Their ideas are the interpretations of the Constitution. So picking between legal scholars and experts, and your ideas of what the constitution should say, I think I might side with the experts.
I have already demonstrated that the people of the several states have never consented to or adopted an amendment in the U.S. Constitution that limits state policies on religion.
I will try to make it as clear as possible how federal courts ignore the Constitution on this issue:
The First Amendment does not apply to the states. The Fourteenth Amendment did not change that fact. The Supreme Court simply asserts, without any evidence, otherwise. The court’s usurpation of state sovereignty and self-government is that frighteningly simple.
It can not be disputed that the states are not limited in any way by the U.S. Constitution regarding religion. If we don’t want our state officials interfering with religion, then we need to look to the Iowa Constitution for that protection, not corrupt and distort the meaning of the U.S. Constitution to get what we want.
It’s laughable to claim Supreme Court justices are “legal scholars,” especially when real legal scholars and historians have proven their assertions wrong. The aforementioned history and evidence are not my “ideas of what the constitution should say.” They simply reflect what the people’s representatives understood they were ratifying—what the people actually consented to—when they adopted the relevant provisions in the Constitution. They aren’t my opinions, they are the opinions of the framers and ratifiers.
Well, maybe they should have included a clause prohibiting anyone or any court from interpreting . . . or just have been incredibly more specific.
Brian, I know your beliefs are strong but your opinions are not objective fact. Period. We disagree. So rather than argue about what we will never agree upon, please answer my questions.
This may seem repetitive, but let me restate the facts:
The First Amendment was enacted to make sure the federal government did not abuse its listed powers; it had nothing to do with limiting state and local policies on religion. It is silly to argue otherwise.
James Madison—chief architect of the Bill of Rights—also proposed the following amendment in the First Congress: “No state shall infringe the equal rights of conscience, nor freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.” His proposal was defeated, thus leaving control over religion to state and local authorities, right where it always had been.
The Fourteenth Amendment, enacted in 1868, did not impose any limitations on the states regarding religion. This was demonstrated when James Blaine, a framer of the 14th Amendment, proposed the following amendment only seven years later: “No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof...” Blaine’s amendment, like Madison’s, was defeated in Congress, once again giving testimony that the people of the states did not want to forfeit their control over religion to federal courts.
How anyone can dismiss these clear facts as “opinion” is beyond me.
As I have stated in an earlier post, I personally favor the religious liberty guarantees in the Iowa Constitution. If Spencer is indeed forcing a particular religion or denomination on students, using public funding, then I would be opposed to those actions.
Brian you can cut and paste and retype the same things over and over as much as you want but it won't transform your subjective opinion into objective fact.
Again, what I have stated are not my “subjective opinions.” They are the understandings of the relevant constitutional provisions by the people who formally adopted them.
I guess sometimes no amount of proof will suffice for some people; especially those who stubbornly cling to the dogmas that are falsified by the clear evidence. The people who dismissed Galileo were probably similar.
Perhaps I should have asked you, Harry Selby, why are my statements subjective opinions? What is it about the aforementioned evidence that is debatable? What is it about Everson v. Board of Education (1947) that refutes the evidence I have presented? Why is Everson’s reasoning superior? Or is it?
Brian, "understandings" are, by definition, subjective.
Brian, you can supply evidence to support an opinion. I believe your opinion is your opinion. You have even provided evidence to support the opinions of others. But you have not proved objective fact.
You state them as objective facts but they are not.
We can determine what some people's "understandings" were in 1787, but those "understandings" are not authoritative in 2009, especially with the changes in law that have occured since-the Constitution has been amended.
For example, if Founder A based his "understanding" of something based on the legality of slavery, that "understanding" is moot.
For example, you wrote: "The Fourteenth Amendment, enacted in 1868, did not impose any limitations on the states regarding religion. This was demonstrated when James Blaine, a framer of the 14th Amendment, proposed the following amendment only seven years later: “No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof...” Blaine’s amendment, like Madison’s, was defeated in Congress, once again giving testimony that the people of the states did not want to forfeit their control over religion to federal courts."
It doesn't matter what happened seven years afterward, what matters is that the 14th Amendment became law the moment it was ratified. Furthermore, just because something happened seven years afterward does not prove the "understanding" of what happened before. It is an opinion.
As you know, Congresses change and Presidents change. People change. Opinions change. Plus, there are political considerations that are ever-changing.
You assume that I disagree with you or that I dismiss your evidence. All I am trying to get you to understand is that there is a difference between a subjective opinion (no matter how well it is supported) and an objective fact. For example, it is an objective fact that the Earth is a sphere. That has been proved. It is an opinion that the Constitution allows for states to establish religion. It is also an opinion that the Constitution prohibits states from establishing religion.
“We can determine what some people's ‘understandings’ were in 1787, but those ‘understandings’ are not authoritative in 2009, especially with the changes in law that have occurred since the Constitution has been amended.”
That just begs the question: Why is the founders’ understanding of the 1st Amendment no longer authoritative? What amendment makes their understanding of the 1st Amendment moot? It can not possibly be the 14th Amendment, because I can demonstrate with overwhelming evidence that it left religion untouched.
Or does the 1st Amendment simply evolve with changing times and changing needs to mean that you can not have a voluntary, student initiated prayer at a high school football game?
None of their understandings are authoritative. They never were. Only the law is authoritative.
The founders never understood the internet. Should internet journalism be included as "free press," or just news that is actually printed with a press?
No one ever said it did.
But part of Article I, Section 3 is moot because the Constitution has been amended: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
You can provide evidence to support an opinion but you cannot prove that the 14th Amendment left religion untouched unless you discover that the 14th Amendment really reads: "Any state can establish a religion and subject its citizens to any kind of crazy dogma the legislators feel fit."
Voluntary prayer at a high school football game is perfectly legal and fine. The school itself, however, as an agent/entity of the government cannot endorse or lead a prayer. That is tantamount to establishing religion.
I go to a football game to watch a football game. If I wanted to pray with others I would go to church. There is a time and place for everything.
Who grants us the "Freedom of Speech?
That makes no sense whatsoever. How could you even possibly begin to find the meaning of a law or provision without looking into its background? It is an ancient canon of interpretation to refer to the lawmaker’s intentions and understandings of a particular law to find the meaning of it.
The Federal government has no granted power to regulate the internet, radio, TV, or the press anyway, so the question is pointless.
You are shifting the burden of proof by requiring me to prove the negative. The burden is on those who would assert that the 14th Amendment had anything to do with religion; the court has not given any proof at all. Even by your own logic you have invalidated the Supreme Court’s interpretation of the 14th Amendment, because the amendment does not say, “No State shall have school prayer, nor moments of silence in school, nor Nativity scenes in city squares...”
You are also ignoring what even the Supreme Court has recognized in the past: The intention of the lawmaker rises above even the explicit letter of the law.
Why is it so difficult to just admit that the claims made by Justice Black in Everson v. Board of Education (1947) were wrong and contrary to the historical record? Why is it so hard to clearly see that the 14th Amendment’s due process clause had nothing to do with religion? There is no evidence whatsoever that it did. The amendment had no intention to interfere with religion in the states. Not one state was scrambling in 1868 after ratification to get rid of school prayer or public Nativity scenes; the debate in Congress over the Blaine Amendment is just one demonstration why.
That's not the same thing as "authoritative."
Have you ever heard of the FCC?
I was asking a hypothetical to challenge your claim. You are evading it.
Wrong. I am not even dealing with a burden of proof. You claimed that you could provide evidence that the 14th Amendment left religion untouched. Yet there is no proof of that since there is nothing definitive about religion in the text.
Part of the text reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
Now, it doesn't say "with the exception of religion" does it? It refers to ALL privileges and ALL immunities.
Why is it so hard to clearly see that the 14th Amendment has to do with all privileges and immunities?
So you are claiming that the states have the power to limit free speech and free press, to establish religion, to prohibit keeping and bearing arms, etc.? Is that right?
I thought this discussion was over, but I will continue.
That logic invalidates Everson’s holding, because there are no definite religious limitations in the text.
Not one case I mentioned above relied on that clause. You’re just responding with an irrelevant question, but I’ll chase that rabbit:
The court noted that the 14th Amendment’s “privileges or immunities” clause did not go beyond the similar, narrowly construed privileges and immunities clause of Article IV. This is faithful to the framer’s intent.
The 14th Amendment does not ban all discriminatory state action. The amendment did not bar a state from denying certain people the right of suffrage, or from imposing unreasonable regulations on persons and businesses. Even the court has said as much. How do you explain that away if it protects all privileges and all immunities from state abridgment?
Cough-syrup, even administered by a doctor, could be an intoxicating liquor, yet it was not intended to be banned by the 18th Amendment. Would you have included that product in the amendment’s meaning? After all, it does not explicitly say “with the exception of cough-syrup administered by a doctor,” does it?
Maybe you should take note of an ancient rule of interpretation stated by the Supreme Court: “A thing may be within the letter of a statute and not within its meaning, and within its meaning though not within its letter. The intention of the lawmaker is the law.” Hawaii v. Mankichi (1903) The intent of the 14th Amendment did not have anything to do with religion in the states; therefore, religion in the states was excluded from the amendment’s meaning.
(How about smoking marijuana on private property for medical purposes, or getting a quality education, or driving a car on the sidewalks, or not being subjected to capital punishment? Do I have a federal case under your interpretation? Are any of these things a privilege or immunity that no state can deny? Or do you have limitations that go with your reading of that clause? I’m sure your personal and convoluted interpretation of that clause would have nothing to do with what the sovereign people actually ratified. Without looking into the original intent of that clause, you are free to pour in your own personal views of what you think “privileges or immunities” ought, and ought not, to mean.)
Yes. The ability to do such regulations is one thing; whether it would be a good idea is another, and is for the people of each state to decide. It’s called federalism. It’s called self-government. There are those things called state constitutions, you know. If we did not live under the unconstitutional tyranny of the incorporation doctrine, then we would not have to tolerate Justice Scalia telling state legislatures that flag burning is a federal right, or Justice Kennedy telling state legislatures that not being punished by death for raping a child is a federal right, or Justice Stewart telling state legislatures what is and is not obscenity.
Brian, you are changing the discussion by throwing in points that go off on tangents. If you can't address the SPECIFIC points I asked about then just say so.
You can cite court decision after court decision and so can I. Hawaii v. Mankichi does not invalidate Everson v. Board of Education (especially since it came later). That, however, does not prove your point about whether or not the 14th Amendment purposefully leaves religion alone.
There are honest disagreements. If there was a definitive conclusion then there would be no argument.
We all are. So are judges. Otherwise specific privileges and immunities would be spelled out.
Yes, I've heard. I have also heard that they don't trump the federal constitution.
I fail to see where the “honest disagreements” are.
You kept making silly arguments about the explicit text of the amendment. That is why I cited Hawaii v. Mankichi (1903) to help you understand some guidelines of interpretation.
The words of the amendment appear general, yes, but so do many other clauses in the constitution. The exclusion of suffrage alone is proof on the surface that it has a limited scope. Consider:
(1) During the debates in the 39th Congress we find that the only topic being discussed was remedying race discrimination—the terrorism freed blacks were facing in the South. Even contemporary court cases dealing with the amendment recognized that it only deals with race discrimination.
(2) Further inquiry reveals that the amendment was intended to address race discrimination regarding only a limited category of topics. Again and again, the framers repeated that the amendment was only constitutionalizing the particulars of the Civil Rights Act of 1866, which, standing alone, could be struck down by courts or repealed by future Democratic congresses.
(3) After the adoption of the 14th Amendment, both state and federal courts continued to hold that the Federal Bill of Rights does not apply to the states.
(4) After the adoption of the 14th Amendment, new states were admitted to the union—that is, approved by Congress with members of the 39th present—with constitutions in violation of the federal Bill of Rights. Other states soon changed their provisions (regarding criminal processes) making them contrary to the federal Bill of Rights. In sum, both Congress and the states were totally oblivious to the supposed idea that the 14th Amendment enforced the Bill of Rights against the states.
(5) And finally, we have the Blaine Amendment, proposed in 1875. Congressman James Blaine, a framer of the 14th Amendment, published a letter in the NY Times in Nov. 1875 stating that the 14th Amendment did not prohibit a state from establishing a church. He formally proposed the amendment that I quoted above. During the debates, Senator Frelinghuysen (who voted for the 14th Amendment years earlier) stated that the proposed amendment “prohibits the States, for the first time, from the establishment of religion, from prohibiting its exercise...” Senator Whyte opposed the amendment, stating that religion is left “with the States exclusively” and that “so far as I am concerned I propose to leave it there...” Many similar statements could be quoted. The Blaine Amendment was rejected.
This evidence (which I have compressed) is more than enough for your “definitive conclusion.” Nobody contemporary with the 14th Amendment thought it interfered with religion in the states because that is not what was ratified.
“On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one which was passed.” - Thomas Jefferson
The honest disagreements are over our honest interpretations of the 14th Amendment. I don't think you are lying, I think you honestly believe what you are writing. And I honestly believe the points I am asserting. I think we are both being honest.
You seem to be asserting that court decisions take priority over the actual written law...as long as you like the court decision.
The amendment is, as you say, general. I argue that it doesn't exclude anything since it clearly reads, "privliges and immunities" of "all persons born or naturalized in the United States." In fact, this language itself must include women since women are persons regardless of whether or not it is spelled out. So it really proves nothing. It is YOUR opinion, not definitive proof.
Legislators routinely pass laws that violate either a state or the federal constitution. That's why the SCOTUS hears cases.
Whether some of the people who wrote and ratified the amendment didn't want it to apply the federal Constitution to the states or not is moot since there is no specific language in the amendment doing so. Maybe it was sloppy writing, but clearly the 14th Amendment prohibits states from infringing on the rights of citizens that are protected by the the rest of the Constitution.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."
It doesn't read, "which shall abridge the privileges or immunities of citizens of a particular state." It reads that ALL citizens of the United States must not have their privileges and immunities abridged, nor shall any person be deprived of the equal protection of the laws within the United States.
I have the privilege of free speech (a right guaranteed by the 1st Amendment) and am immune from any law abridging it. The 14th Amendment says that ALL CITIZENS OF THE UNITED STATES are protected from any state passing a law that abridges that.
The Blaine Amendment had to do with more than establishment. Furthermore, the amendment passed the House of Representatives by a vote of 180 to 7. It also got a majority of votes in the Senate, just not the required two-thirds. So MOST LEGISTLATORS voted for the amendment.
Regardless, if there was consensus then there would have been no debate.
Your opinion. Not mine. Not of a lot of legal scholars. If the proof was definitive (like the Earth is a sphere) then there would be no debate or disagreement.
The outcomes that your novel method of interpretation would produce were actually rejected by the 14th Amendment’s framers and ratifiers during the debates. They were also rejected by rulings of the Supreme Court.
Therefore I’ll just let the five points of my last post stand, because, as the court noted in 1794, destructio unius, est generatio alterius (“the destruction of an objection, begets a proof”).
Also, the Earth is not a sphere.
John Bingham, the principle author of the first section, intended that it bind the states to the first eight amendments of the Bill of Rights.
True. Initially. Since, the court has overturned itself and moved towards Bingham's intent.
So you dismiss the more recent rulings because you don't like them, and agree with the initial ones because you do like them. Personally I think the initial decisions created differences between U.S. citizens and citizens of states. How can someone be a citizen of any state and not be a citizen of the United States?
And I'll let my responses stand.
And the sun revolves around us. . . on a crystal enclosure.
On January 30, 1871 Bingham supported and voted for a Report of the House Committee on the Judiciary which stated that the 14th Amendment’s “privileges or immunities” clause “did not add” to the privileges and immunities mentioned in Article IV. This is incompatible with the incorporation theory. Bingham also voted for the admission of Nebraska, which had a constitution in violation of the federal bill of rights. Bingham did not object to this fact.
The case of Twitchell v. Pennsylvania (1868) was decided only months after the 14th Amendment’s adoption. There the court reaffirmed that the Bill of Rights does not apply to the states. Justices on the Supreme Court and councils would certainly have been aware of such a monumental change, if the 14th Amendment had done so. Of course they were unaware because it did not happen. The court would continue to rule similarly well into the 20th century, reflecting the original understanding of the 14th Amendment. The temptation to play judicial imperialists and philosopher kings proved too great in the long run, however.
The Earth is not a perfect sphere, but I know what you meant by that statement.
Big difference between bind and add. I hope you did not intend a straw man.
There is no doubt that Bingham, the principle author of the first section of the fourteenth amendment intended it to bind the first eight amendments to the states. The 14th was drafted in 1866.
Bingham's early drafts for the section:
"The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property."
and
"Congress shall have power to make laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in every State the same immunities and also equal political rights and privileges."
Other framers of the amendment also intended to bind the Bill of Rights to the states. In 1866, Senator Benj. Brown introduced (and Senate adopted) a resolution to consider amending the Constitution: "so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument." This makes clear the intent of the Fourteenth Amendment to incorporate the Bill of Rights by those in the Senate.
First of all, the Fourteenth Amendment wasn't mentioned in Twitchell. Second of all, it is true that the Court rejected the binding of the Bill of Rights on the states for many years (see the Slaughter-House cases of 1873, etc.). The "incorporation doctrine" wasn't introduced until 1887 by Justice Black.
In those early cases I see clear cases of judicial activism. The Court created different categories of citizenship skirting rather clear Constitutional language.
So, if you think intent of the framers is prime then you must agree that the 14th INTENDED to BIND the Bill of Rights on the states since that's what the principle FRAMERS stated they intended.
Bingham argued in the House of Reps. during the closing debate: "It was an approbrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment."
FindLaw | Cases and Codes
Bingham, as a matter of fact, believed that the Bill of Rights was already binding upon the states, but that this amendment codified that.
See Liberty Magazine 93 (September-October 1998): 12-17: "Original Intent And The Fourteenth Amendment"
I never said it was "perfect." There is no perfect sphere, just as there is no perfect cube or cone.
The Article IV privileges and immunities—which protected visitors in host states—had been interpreted by courts be to be a limited category of rudimentary rights, which, of course, did not include the Bill of Rights adopted after Article IV. These cases were read before the 39th Congress by Senator Trumbull.
Bingham submitted and was an approving member of a committee report on Jan. 30, 1871 that stated the following:
“The [privileges or immunities] clause in the fourteenth amendment, does not, in the opinion of the committee, refer to the privileges and immunities of citizens of the United States other than the privileges and immunities embraced in the original text of the Constitution, article 4, section 2. The fourteenth amendment, it is believed, did not add to the privileges and immunities before mentioned...”
Bingham, too, voted for the admission of Nebraska. Their constitution, which was in violation of the federal bill of rights, was reviewed by Congress and met no objection by Bingham, or others on this subject. Numerous reconstructed states were also readmitted with state constitutions inconsistent with the federal bill of rights. These, too, were reviewed by Congress with not a single person rising to object on this subject, including Bingham. Not long after, states changed their constitutions via convention, making them inconsistent with the federal bill of rights.
The reason for all of this is simple: Nobody in Congress, the States, nor the justices in state and federal courts thought that the Bill of Rights was now applicable against the states. It is easy to be unaware of something that did not happen. Though the quotations are too numerous to cite, the framers repeated that section 1 of the amendment was incorporating the listed rights in the Civil Rights Act of 1866.
Yes, Bingham did mention that he thought that the Bill of Rights was already applicable to the states. He thought that state officers’ oath to the U.S. Constitution bound them to provisions that were inapplicable to them. Such confused and mistaken statements (he also believed that “equal protection” was already listed in the Constitution) further undermines the “Bingham” argument, along with the fact that Bingham’s drafts were all rejected, as was his proposal to include “just compensation” clause for the taking of private property for public use.
[Incorporation] wasn’t introduced until 1887 by Justice Black.
Black was born in the 1880s. But yes, he laid out “total incorporation” in a dissenting opinion in Adamson v. California (1947). The court never adopted his views, and instead continued to use “substantive due process” to pick and choose its favorite provisions to enforce against the states.
No one is claiming it did. Bingham believed the Bill of Rights was already BINDING (not adding anything) on the states. He felt that the 14th codified that. Again, not to "add to the privileges and immunities" but to bind the states to the Bill of Rights.
So what? The federal constitution trumps a state (or territory) constitution.
That's why Bingham wrote the first section of the amendment. I quote him again: "That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment."
As you wrote earlier, "It is an ancient canon of interpretation to refer to the lawmaker’s intentions and understandings of a particular law to find the meaning of it."
Since Bingham was the principal framer of the amendment, you need to refer to his intentions and understandings in order to find meaning. It doesn't matter, as far as his intent, if the court ruled otherwise.
Early in this discussion you seemed to place primacy with the framers instead of the courts. Now you seem to be deferring to the courts since you don't like what Bingham intended.
You wrote: "The aforementioned history and evidence are not my “ideas of what the constitution should say.” They simply reflect what the people’s representatives understood they were ratifying—what the people actually consented to—when they adopted the relevant provisions in the Constitution. They aren’t my opinions, they are the opinions of the framers and ratifiers."
Bingham made his intent very clear. It would seem that the subsequent cases that ignored his intent were examples of judicial activism.
My mistake. I was thinking of Mugler v. Kansas when the concept was sort of used (although the term was not). Black would become a champion of the incorporation doctrine, writing in several cases: e.g., Gideon v. Wainwright, Adamson v. California (as you pointed out). Gitlow v. New York is usually credited at the origin of the incorporation doctrine (1925).
Bingham was always making confused, contradictory, and mistaken statements in the debates, which undermines any authority he may have had, and pretty much excludes him from the intention of the lawmakers, despite initiating the drafting process.
He stated that “equal protection” is already listed in the Constitution, which of course it was not. He stated that “privileges and immunities”—located in Article IV—was located in the Bill of Rights. He said that state officials were already bound to the Bill of Rights via their oath to the Constitution, which of course is wrong. He said that he did not want to interfere with the states’ exclusive control over life, liberty, and property; then, in the same sentence, said that he wants to punish state officials who violate due process of law. He said that even though the “elective franchise” is one of the “privileges of a citizen” that no state can abridge, it is still under the states’ exclusive control. He stated that “contrary to the express letter of your Constitution, ‘cruel and unusual punishments’ have been inflicted under State laws,” oblivious to the fact that the 8th Amendment was inapplicable to the states. He stated that he did not want to “reform the whole civil and criminal Code of every State,” which of course is incompatible with the idea of applying the Bill of Rights to the states.
When the measure was returned to the House after the Senate for final debate, not a word was said from Bingham about the radical change of applying the Bill of Rights to the states. Instead, George Latham said, “The ‘civil rights bill’ which is now law...covers exactly the same ground as this amendment.” Henry Van Aernam said that the amendment gives “constitutional sanctions and protection to the substantial guarantees of the civil-rights bill.”
Bingham’s earlier confused utterances do not carry any weight in the legislative history, and fell on deaf ears by his peers, including the radical Republican leader Thaddeus Stevens. Speaking of John Bingham, Thaddeus Stevens said, “In all this contest about reconstruction, I do not propose to listen to his council, recognize his authority, or believe a word he says.”
Just because John Bingham made a few statements supporting incorporation, it does not follow that what he said was heard, understood, and accepted. In fact, the evidence demonstrates that no one, even John Bingham in his 1871 committee report, understood that the 14th Amendment enforced the Bill of Rights against the states.
Of course Derek Davis, a biased social policy advocate with an agenda, does not mention any of this in the article you cite. Not exactly the mark of an objective historian or legal scholar searching all the evidence for the truth.
That's your opinion. I've read all the pertinent quotes I can find (as well as analyses) and he seems consistent to me.
You can disagree with Bingham and others if you wish. That, however, doesn't remove his intentions as the principle framer.
True. But you are the one who places primacy on the framers' intent (initially at least). A person's intent is his/her intent whether or not anyone else agrees.
All of this supports my original contention that there is no definitive proof about the 14th Amendment. The principle framer had one notion. Others at the time had different notions. The court came to a certain set of interpretations and then, over time, changed them. That's how it works in this country. If people want laws to be specific for all time then they should be written that way. We can only assume that many, particularly Constitutional amendments, allow for contextual interpretations and understandings.
That's because it is irrelevant to his argument. And I note that you dismiss all of his evidence that contradicts your opinion.
Maybe you should read Raoul Berger and Charles Fairman. You will get a much fuller, scholarly analysis. Read Philip Hamburger for a scholarly analysis of the history of church and state.
You fail to distinguish what was and was not adopted. Madison was the “principle framer” of the Bill of Rights, yet he did not get everything he wanted. Many framers had wishes for the 14th Amendment and did not get what they wanted. Bingham was such a confused thinker with many mistaken statements that no one took him very seriously, including Thaddeus Stevens.
I’ll assume, for the moment, for the sake of argument, that Bingham is authoritative on the 14th Amendment:
Many framers said that the 14th Amendment would not apply outside the South because its purpose was to remedy the Black Codes. Even John Bingham, the man who you rely on, said as much when he stated in the House that “under no possible interpretation can [the 14th Amendment] ever be made to operate in the State of New York while she occupies her present proud position.” Bingham would certainly apply this logic to Iowa, a state that recognized blacks’ voting rights before the 15th Amendment and who had a higher percentage of its population volunteer in the Union army than any other state.
If you use Bingham for incorporation, you certainly must also concede that Iowa was intended to be exempt from the 14th Amendment.
So now we’re back to claiming that the 14th Amendment has no definite meaning. When the original understanding starts to look unpalatable, simply dismiss it all, embrace the idea of a “living document,” appoint favorable justices, and hope the judicial legislation turns out in your way? Sadly, that describes the system today.
Brian, that's irrelevant to the assertion: "A person's intent is his intent whether or not anyone else agrees."
Are you now claiming that the framer's intent is no longer the most important factor in interpreting a law?
He was responsible for the first section.
Of course not. The Amendment clearly states that everyone in the nation have equal protection and due process. I don't know the context in which Bingham stated what you've quoted.
Brian . . . I've never claimed any such thing. Please don't mischaracterize me. You made the assertion that "the U.S. Constitution leaves the establishment of religion entirely with the states" and that wasn't just your opinion but that you've proved it so. Moreover, you asserted that the framers' intent is the criterion for interpretation. I then provided evidence that others have different opinions and that they are justified. Moreover, I pointed out that the principle framer of the 14th Amendment disagrees with your opinion (the one that you claimed you proved true). That's all.
I don't believe the 14th Amendment has no definite meaning. I believe that the 14th Amendment is interpreted differently by different people. My opinion is that the 14th Amendment binds the states to the Bill of Rights. Not only do I believe that was the principle framer's intent, I see it in the wording of the first section and in the arguments made by Hugo Black and other Supreme Court justices.
I understand that you disagree. But, if anything, this discussion has "proved" that there is no specific and definitive interpretation of the amendment. Nor has there been any consensus over the past 140 years or so.
I agree. That's why I think justices like Scalia and Alito are wrong for the court.