GreyICE wrote:Coito ergo sum wrote:Technically, the "framers" of the Constitution were talking about the United States Congress in Washington DC, which has nothing at all to do with school boards in New York State. It was not until the 14th Amendment in about 1865-69 (approx) when the States were prohibited from depriving a person of "liberty" without due process of law. Over time, the Supreme Court held that fundamental liberties - like the liberty of and from religion embodied in the first amendment - were applicable to the States. The "framers" never intended that the First Amendment would prohibit anything other than federal Congressional action - hence their use of the term "Congress" (which refers to the federal Congress).
Presently, Constitutional law is built on an application of the fundamental freedoms embodied in the bill of rights, through the 14th Amendment, to state activities including the actions of school boards. Nothing in the first amendment, however, has ever been held to require government employers to give employees, whether state or federal, three weeks off for religious reasons. We shall see what the courts do with it.
If your interpretation prevails, then someone hired by the government who doesn't want to work Thursdays for religious reasons must be permitted that time off. I am quite sure none of "the framers" intended the First Amendment to require that.
Really? You want the interpretation of the Bill of Rights that the framers only intended it to effect the Federal Government, and that states were free to do as they wish?
Uh...yeah - that's why there was a state church in Connecticut until 1818 and an established religion in Massachusetts until 1833, until those states changed their own charters/constitutions. The Massachusetts system required every man to belong to some church, and pay taxes towards it.
You won't find a single Supreme Court decision applying the federal bill of rights to the states until well after the 14th Amendment was passed. The Fourteenth Amendment to the U.S. Constitution, ratified in 1868, makes no mention of religious establishment, but forbids the states to "abridge the privileges or immunities" of U.S. citizens, or to "deprive any person of life, liberty, or property, without due process of law". In the 1947 case of Everson v. Board of Education, the United States Supreme Court held that this later provision incorporates the First Amendment's Establishment Clause as applying to the States, and thereby prohibits state and local religious establishments. So, when the Supreme Court held that States could not establish a religion, it did so by applying the 14th Amendment - because otherwise the 1st Amendment would have no applicability to the States.
GreyICE wrote:
States were free to imprison people without trial for as long as they wish?
They weren't limited by the Sixth Amendment, if that's what you mean. They had their own charters and constitutions which provided protections for criminal defendants, and they all had the common law including the writ of habeas corpus which applied irrespective of the US Constitution. However, the 6th Amendment right to a speedy trial did not directly apply to the states. That's right. Parts of the 5th, 6th and 8th Amendments were held to apply to the States, through the 14th Amendment, in the 20th century.
Even today not all of the Sixth Amendment applies to the States because the Supreme Court found that things like "jury unanimity", while required in federal trials, is not required in state trials (unless the state constitution or laws require it). And, while there is a
The Eighth Amendment's rights against excessive bail and excessive fines has never been held to be applicable to the States, at least not yet.
The Fifth Amendment's right to indictment by a grand jury has never been held to be applicable to the States, and thus only States that have their own requirements for grand juries have such requirements.
GreyICE wrote:
That they intended States be free to force people to testify against themselves?
The right against self-incrimination was not incorporated to apply against the states until 1964. See Malloy v. Hogan, 378 U.S. 1 (1964). The 5th Amendment was held to not apply directly, but the right not to self-incriminate was applied to the states through the 14th Amendment.
GreyICE wrote:
That they wished for the States to be allowed to break into people's homes and take whatever they wanted whenever they wanted? That they sought to allow States the right to forgo Jury trials in favor of having a single Judge decide the verdict in any case? That they wanted States to have the right to torture prisoners, to stone them, to beat them to death? Just none of this could be done by the Federal Government?
The federal bill of rights is a bill of limitations on federal power. The "framers" jealously guarded the sovereignty of the states, and they were concerned about federal tyranny. So, it wasn't that they they wanted tyranny - the Virginians felt that Virginia would protect Virginians rights, and the federal constitution was not drafted as a limitation on State power. The States had their own constitutions and those constitutions, like Virginia's declarations regarding religious freedom, etc., did operate to protect against some of the same infringements on liberty embodied in the bill of rights. But, the bill of rights refers to "Congress" for a reason - the "framers" were not so stupid that they couldn't right "State and federal legislatures shall not..." - they wrote "Congress." Why do you think they did that?
GreyICE wrote:
You realize this insane position is not held by a single Supreme Court Judge, that you have to go digging deep into the theocracy wing of the lunatic right to find a single person calling themselves a Constitutional Scholar who adheres to this?
Of course they do. I'm correct. Have you even read the opinions like Everson and Malloy that I mentioned above. They specifically state that the right to freedom of religion - the rights embodied by the bill of rights - are incorporated against the states through the 14th Amendment. It's called the "incorporation doctrine" and EVERY constitutional scholar agrees with me and it's part of the rationale of EVERY Supreme Court case concerning allegations that a State government has violated some right embodied in the bill of rights like speech, religion, press, etc.
You're dead wrong, and you don't know what you're talking about.
In its first hundred years, the United States Supreme Court interpreted the Constitution's Bill of Rights as a limit on federal government, and considered the states bound only by those rights granted to its citizens by their own state constitutions. This did not change until after the passage of the 13th, 14th and 15th amendments. It took until the 1930s, when the Court began consistently reasoning that the Fourteenth Amendment guaranteed citizens First Amendment protections from even state and local governments, a process known as incorporation. The 1940 decision in Cantwell v. Connecticut was the
first Supreme Court decision to apply the First Amendment's religious protections to the states, that case focusing on the so-called Free Exercise Clause. The decision Everson followed in 1947, the first incorporating the Establishment Clause.
GreyICE wrote:
You realize that the founders clearly used the Tenth Amendment of the Constitution to show that they were denying powers to the States, right?
It says that where powers are not denied to the states and not delegated to the federal government, they are reserved by the states and the people. That has nothing to do with the incorporation of the bill of rights through the 14th amendment to limit state power.
10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
GreyICE wrote:
The First Amendment of the United States of America applies to everything at every level of government. Federal, State, County, Town, whatever.
It didn't in 1787, and you were talking about the intent of the "framers". The framers were alive in 1787. It wasn't until after the passage of the 14th Amendment and the Supreme Court development of the idea of the "incorporation doctrine" whereby most of the rights embodied in the bill of rights were incorporated as applicable to limit state power.
When a person files a lawsuit to claim that a State or local government has violated their right to freedom of speech, they have to allege specifically that the right at issue is freedom of speech and that the State or local government is bound by the 1st amendment as incorporated against the states by the 14th Amendment. It's the 14th Amendment that is key. That's because the first amendment was not found to be a limitation on state or local government power until 1925 - Gitlow v. New York, 268 U.S. 652 (1925) (freedom of speech), and Near v. Minnesota, 283 U.S. 697 (1931) (freedom of the press). Both of those seminal cases relied on the 14th Amendment to restrict the State's power to limit freedom of expression.
Quoting from Near v Minnesota: "For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment." See that - "liberty of the press guaranteed by the Fourteenth Amendment." Fourteenth - not the First - the Fourteenth. This is because the Fourteenth Amendment incorporates the First and makes it applicable to the States. As literally written, the First Amendment applies to the Congress of the federal government, not the States. Savvy?
GreyICE wrote:
This is not an 'interpretation.' This is what is. That was what was intended at the very first.
The Supreme Court case law says otherwise. You won't find one Supreme Court case in the first 100 years that applies any of the bill of rights to the states, and all of the Supreme Court decisions stating that the First Amendment and other rights in the bill of rights applies to limit state power do so by finding that the 14th amendment makes them applicable to the States.