Thursday, September 21, 2006

Bryan Fischer, Executive Director

FIRST AMENDMENT, PART 4

4. The "Incorporation Doctrine" is judicial activism at its worst

If the Constitution clearly grants no permission to any branch of the federal government to intrude in matters of religious expression at the state or local level, how did we get to the point where the Supreme Court is issuing rulings on whether Texas high school football games can open with prayer?

We got here through perhaps the most egregious expression of judicial activism in legal history. Several cases came before the Supreme Court in the 1940s. Realizing that the Constitution plainly did not give them jurisdiction over issues that should have been left to the states to decide, the justices simply invented a justification for their intrusion by linking the 14^th Amendment to the First.

Once the Court caused this linkage to materialize out of thin air, it seismically altered the landscape of religious liberty. Justice William Douglas shamelessly acknowledged this in a 1970 ruling when he wrote that the incorporation doctrine resulted in "reversing the historic position that the foundation of those liberties rested largely in State law . . . [T]he revolution occasioned by the 14^th Amendment has progressed as Article after Article in the Bill of Rights has been incorporated in (the 14^th Amendment) and made applicable to the States." Jefferson's "noiseless step" had now become a thundering stampede of judicial recklessness and arrogance.

The 14^th Amendment was passed in the wake of the Civil War to ensure that freed black slaves would treated as equal citizens everywhere in the U.S. It specifically prohibited any State from withholding citizenship from any of its residents on the grounds of race, and required the States to grant every such citizen the full protection of its laws.

The First Amendment restrains Congress; the 14^th restrains the States

But remember that the First Amendment was intended only to bind Congress. The 14^th, on the other hand, was a restraint upon the states. The language makes this clear: "No State shall make or enforce any law . . . nor shall any State deprive any person of life, liberty, or property without due process of law . . ."

The connection between the First and 14^th Amendment went undetected by the Court for 79 long years (from 1868 to 1947) for the simple reason that such a connection does not exist. "Congress" is not a "State." The connection sprang into existence from the hyperactive minds of activist judges looking for a bit of legal chicanery to justify sticking their noses in where their noses clearly did not belong.

Once this wholly fabricated linkage was made, the Court arrogated to itself the privilege of ruling on matters of religious liberty issues that the First Amendment specifically and plainly forbade it to address.

Congress rejected an amendment that would have made the First Amendment binding on the States

How do we know that this so-called "Incorporation Doctrine," through which the First Amendment is "made wholly applicable to the States," is nothing more than judicial legerdemain? We know this because Congress rejected a proposed amendment to the Constitution that would have done that very thing.

If Congress had intended the First Amendment to apply to the States, it had the chance to do so in 1876, just eight years after enacting the 14^th Amendment. The Blaine Amendment was proposed to Congress in that year, and it read, in part, "No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof . . . ," wording that is virtually identical to the wording in the First Amendment which applies exclusively to Congress.

However, this amendment was rejected by Congress, a Congress essentially the same as the one which had passed the 14^th Amendment. And not only did Congress reject the Blaine amendment, it rejected five additional proposed amendments that would have done the same thing.

Decoupling the 14^th and First Amendment is not as radical as it might first appear. In the Ten Commandments cases taken up by the Court in 2005, the Rutherford Institute argued for just a decoupling in its friend of the court brief. And Justice Clarence Thomas is already of the persuasion that the imagined link should be severed. May their tribe increase!

Historian David Barton rightly accuses the Court of the "complete subverting of the Constitution by rewriting (its) intent," and summarizes it this way: "[E]ven though the Court invokes the Fourteenth Amendment as its supposed constitutional authority to intrude into the issue of State and local religious expressions, history proves that the Fourteenth actually provides the Court no legitimate basis for that interference." (emphasis in original)

The solution? Surprisingly, it is erecting afresh Jefferson's wall of separation - as Jefferson intended it.

Part 5