The NH Constitution empowered the state legislature to authorize towns, parishes, and religious societies "to make adequate provision....for the support and maintenance of public Protestant teachers of piety, religion, and morality" and, under NH law, only Protestants were eligible to be governor or legislator.
In a 276 page opinion, the 14th Amendment (again, ratified only 5 months earlier, including by the state of NH) was not mentioned once...either in the opinion of the Court or the dissent. The only mention of the US Constitution's 1st Amendment was in the majority opinion as follows:
...the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions...Probably at the time of the adoption of the constitution and of the amendments to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as not incompatible with the private rights of conscience and the freedom of religious worship.
Another illustration that incorporation by the 14th Amendment was hardly crystal clear...none of the NH Supreme Court justices or the litigants in that case seemed aware of it
In all candor, I have not read Curtis' book (its been on my Amazon wish list forever). So I will take curiosity's advice and get it and read it.
Yes! What I think we're dealing with here is that there were some very general statements made about the 14th Amendment making the Bill of Rights applicable to the states by Bingham and some of his allies. That's because SOME of the BOR were clearly made applicable to the states by the 14th (e.g., 5th Amendment Due Process) and in a debate people don't always clarify every detail in every statement they make. So when discussing the fact that some of the BOR are incorporated by the 14th, there were general statements made about the amendment placing the states under the "Bill of Rights", but they were just general statements made in debate. I mean, if we somehow placed Iceland under six provisions of the U.S. Constitution, but not the rest, the debate over this might include a few general statements about how we were for the first time "placing Iceland under the U.S. Constitution", but that wouldn't mean every provision.
Bingham appeared after ratification to be more prone to making these statements than before. One time when he clearly stated that the eight provisions of the BOR were made applicable against the states by the 14th, he was quickly reminded that if he had said such a thing before ratification, there would have been no ratification.
Normally when constitutional changes are made, states comply. To the best of my knowledge, no state has tried to bring back slavery, disenfranchise women, or give the power the choose U.S. Senators to their state legislatures since the relevant constitutional amendments on those issues were adopted.
There have been cases where states tried to find ways around amendments. The 15th Amendment giving blacks the vote was met with opposition, That involved changing the election laws to require poll taxes, literacy tests, and other technicalities that blacks couldn't meet.
But the 14th was not followed by states changing their laws on religion in any way, or altering their laws to try to weasel their way around the supposed new federal power to enforce the Establishment Clause. The only change came a few years later when anti-Catholic sentiment prompted a drive to eliminate parochial school aid, and that drive reached its peak with demands for a CONSTITUTIONAL AMENDMENT, not an assertion of power under the already ratified 14th Amendment. The 14th contains a clause authorizing Congress to enforce its provisions. Why didn't they just use that to pass a statute banning parochial aid with a simple majority rather than trying for the more difficult super majority for a constitutional amendment, if the 14th had incorporated the Establishment Clause?
Like today, people can review the same data and reach different conclusions. Given the stature of both Fairman and Curtis, I'm sure that both had carefully examined the material relevant to the writing and adoption of the 14th amendment. Having done so, Fairman was convinced that the 14th was not to include all of the BOR. Curtis was convinced that it was to be included. Contrary to what has been stated earlier in this thread, if the proof in the original documents was so convincing, Constitutional scholars would not still be engaged in this debate.
Furthermore, this was a state court, not a Federal court, so it is not all that remarkable that it would not mention the 14th Amendment, especially if NH had something akin to the establishment in its constitution.
What strikes me is the complete lack of any indication by either the states or Congress that the 14th Amendment imposed the Establishment Clause on the states.
Suppose a state had maintained slavery AFTER the adoption of the 13th Amendment. Suppose a dispute involving slavery had been taken to that state's supreme court, and during the arguments no one (not the judges, not the lawyers for either side) had even mentioned that the U.S. Constitution now banned slavery. It's hard to imagine. Or imagine it happening on any other issue.
Yet there's a total void of activity on religious issues in the wake of the 14th's ratification. Congress moved to enforce the provisions we know are in the 14th Amendment. They did so quite aggressively and even took it to another level when they tried to ban PRIVATE discrimination against blacks, as opposed merely to government discrimination. Yet no one in Congress came forward with a bill to enforce the Establishment Clause against the states.
The states went about their business as if NOTHING whatsoever had happened vis-a-vis religion after the 14th's adoption. While states were rushing all over the place to either change their laws to comply with the new Reconstruction amendments, or to re-write their laws to find some way to get around them (e.g., replacing "whites only" voting laws with poll taxes, literacy tests, "white primaries", etc.). states calmly maintained their laws on religion as if nothing had changed.