Skip to comments.Supreme Court justice agrees: First Amendment limits only Congress
Posted on 05/10/2014 11:00:08 AM PDT by Jim Robinson
I have argued since I first began writing and speaking on this issue that the First Amendment restrains only the actions of Congress. The first word in the First Amendment, after all, is the word "Congress." "Congress shall make no law..."
The Founders quite intentionally were not imposing restraints on what a state could do in offering prayers before legislative assemblies, or what a city could do in erecting Ten Commandments monuments, or what a school could do in offering prayer and Bible reading over the intercom or at graduation. Congress and Congress alone is bound down by the chains of the First Amendment.
This has enormous implications for public policy, because it means that the only entity in America that can violate the First Amendment is Congress. A state can't, a city can't, and a school official or student most certainly can't. State constitutions may have something to say about what those entities can do, but the federal government, including the judiciary, has precisely zero constitutional or moral authority to intervene in such matters.
That, my friends, is freedom. Freedom for states, cities and schools to decide matters of religious expression for themselves without black-robed tyrants on the other side of the country deciding such things for them.
Thus the recent Supreme Court ruling, allowing cities and, in fact, all government bodies to offer invocations in Jesus' name before meetings is a good ruling. But the matter never even should have been before the Court in the first place. The First Amendment prohibits any kind of federal interference in religious expression whatsoever.
And while in many ways I have been a lone voice crying in the wilderness on this topic, I now find there are two of us crying out in the desert of out-of-control jurisprudence. Clarence Thomas...
(Excerpt) Read more at renewamerica.com ...
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There are hundreds of FReepers who have said exactly the same things for many years.
So does that mean that the mayor or city council of my town can pass a city ordinance prohibiting criticism of the city government?
I’d rather the first amendment apply to all levels of government.
That’s where the incorporation clause comes in.
States cannot deprive you of your first amendment rights because of it, though some do try.
“So does that mean that the mayor or city council of my town can pass a city ordinance prohibiting criticism of the city government?
Id rather the first amendment apply to all levels of government.”
I don’t know for sure (and don’t have the time currently to research it) but I would suspect many State constitutions would also have articles prohibiting restraint on freedom of speech.
Perhaps another FReeper knows this off the top of their head.
The Constitution itself is based on a presumption expressed in the Declaration of Independence - that individuals are born with a God-given right to life, liberty, and pursuits. The presumption is expressed in the 10th Amendment that wherever powers the states did not delegate to the federal government remains a power of the states and the people.
Over the years beginning around 1900, the Fabian Progressive Socialists have inverted this presumption and essentially nullified the 10th Amendment and have instead used a twisted application of the 14th Amendment to justify federal power to restrain states and individuals. But the 14th Amendment only gives the federal government power in one specific area to enforce over the states: forbidding state laws forcing segregation. This original intent was confirmed by SCOTUS in the Slaughterhouse cases in the 1800's.
The Constitution and the first ten amendments are pointed at limiting the federal government, not giving the federal government power to enforce over the states with the one exception in the 14th Amendment. If the feds won't overturn these unconstitutional, precedent-breaking decisions of the 1900's, then state courts should begin nullifying back to the original SCOUTS decisions of the 1800's that kept the Constitution intact and the federal government in its constitutional cage.
“Thats where the incorporation clause comes in....”
You may have just answered my implied question in post 7 above.
I don’t like this ruling at all. The reason is, it will force the recognition of non-Christian prayers (you see those drooling atheists out there?) The ruling made it clear that the prayers was permitted ONLY because it was non-discriminatory.
Having litigated many a Constitutional issue, the First Amendment applies to any government restriction. That was not how this was ruled.
I remember years ago, I taught a Sunday School class about prayer in school. I was, at least at the beginning of the class, the only one against it and was typically known as the most conservative member of the Congregation. In the end, I made it clear that ... rest assured, it will NOT end up being the Prayer you want.
The Constitution thinks long term. That’s it’s genius and inspiration. That’s the “God” in it. This is a short term decision. This can be used to stifle our beliefs.
Be careful what you wish for ...
From the Preamble to The Bill of Rights:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
From the first amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
The tenth 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.
Correct! And the Equal Protection of Amendment XIV ensures that this unique protection against Congress is to be applied equally to all citizens. That was the intent in 1787. It was the intent after the War of Secession. And it should ring true today.
Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
(All citizens ought to know the Constitution of the United States of America better than any other document in our lives. Therefore, you ought to know this. Not necessarily have it memorized, but you should know it is a part of the Constitution.)
The Founders believed the states were in the hands of the people of each state and the people of each state would decide accordingly how to run things in their particular state. The only exception would be a clear constitutional violation that could be brought to federal court. The federal court or the Supreme Court are LIMITED to ruling on an INDIVIDUAL case regarding a clear constitutional issue and that's it.
It's good to remember that the federal government is not you friend. It will take anything and everything it can from you including your life if need be. The federal government is a necessary potential evil that can do some good if kept tightly within the limitations of its constitutional cage.
The text and original intent of the Constitution is what it is. The courts cannot (legally) change it.
All powers not expressly enumerated and specifically delegated by the constitution to the federal government are reserved to the sovereign states and to the people.
When Patrick Henry read how they changed his wording for the 10th amendment, he predicted a bloody civil war.
Thats where the incorporation clause comes in.
States cannot deprive you of your first amendment rights because of it, though some do try.
They sure deprive people of 2nd Amendment rights.
Just a observation.
That was my impression as a layman as well. Glad to see it confirmed.
I don't see any caveats in the 1st Amendment at all. An establishment requires coercion. If there's no force involved, government can favor, even promote, any religion it wants subject to the next election. It appears to be that cut-and-dried to me!
Such has been the case since the 20th Century SCOTUS has overturned the Slaughterhouse precedent and twisted the 14th Amendment to allow the federal government to run amok.
Incorrectly, of course. Unlike the First Amendment, the Second Amendment does not mention Congress.
But in becomes a two edge sword regarding speech. .that means everyone but congress can limit speech..
It means everyone on but congress can establish a local religion.
And if you apply to guns..
It means everyone but congress is free to take them from you.
Truth is we live in a world of government and buercrat anarchy...
There a collection of federal, state & local agencies can do to you whatever then dam well please at their whim and toss enough legal BS justification spin that they get away with it.
They have a very low and tight lid screwed on the jar grasshopper
See Post #20. The “incorporation clause” is another invention of an activist SCOTUS.
——Congress and Congress alone is bound down by the chains of the First Amendment.——
Now if we could bound down Obama and his EO’s
The man thinks he is King.....
Profoundly true and most problematic when, for example, the Islamic lobby pushes campus code-type laws and restraints, as far as state constitutions allow, at the state level.
As Thomas Jefferson said, What difference does it make if my neighbor worships one god or a hundred gods? He neither steals my wallet nor breaks my leg.
Courts would do well to remember that where there is no harm, there is no call for legal intrusion. Of course that proposition plentifully applied would ruin the legal industry, so expect it to appear sparingly.
One would seem confident in assuming that the other clauses were likewise closely drawn and intended for the limiting of the Federal government only. That was, after all, why the Bill of Rights was insisted upon in the first place. There was no intention at that time to be limiting the rights of the States, as the Ninth and Tenth Amendment illustrate.
It is safe to say that the Founding Fathers never even conceived such a usurpation of power to the central government as was extracted from the postwar Union in the creating the Fourteenth.
Supreme court ruled that the 2nd amendment IS incorporated against the states.
Couldn’t happen if it didn’t exist.
Sec 1 Amendment 14.
Thank You for beating me to having to say it.
Pretending that Supreme Incorporation of the Bill of Rights is needed to bind the States to them is reversing the outcome of the Civil War.
It and the Constitution limits ALL of the Federal Government.
PN, look up “MacDonald Vs Chicago” and “Nordyke Vs King”.
Yes they do.
NY “Safe” act for example.
A lot of confusion over the years might have been avoided if the 10th had been put first in order.
At the moment, though, a typical state operates like a smaller version of the federal government with all the same potential abuses of power.
Perhaps what we need are city rights or town rights. People could then pick and choose the town or city that's right for them, or incorporate a new town or city. Reducing the restraints on any government larger than that though is just too dangerous.
What we need to do is never give up the fight of defending the constitution and the founding principles. The price of liberty is eternal vigilance. Thomas Jefferson spelled out our final recourse when the government becomes destructive of our unalienable rights to life, liberty and the pursuit of happiness and the ability to secure these rights.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
SCOTUS invents things that don't exist all the time in order to give the federal government more and more unconstitutional power. The "incorporation clause" and the Roe v. Wade opinion are good examples.
So you’re saying that the states can trample on the Bill of Rights regardless?
Because otherwise that is the case.
And incorporation doesn’t give FedGov more power, it says ‘Neither you nor the states can restrict this’.
Not that FedGov or the states LISTEN at all.
Look at NY, CA, and CT for examples of states ignoring that fact.
These are simply extensions of earlier flawed decisions that unjustifiably overturned precedent in the Slaughterhouse cases.
“Just because SCOTUS decides it doesn’t make it it constitutional.”
That is the entire purpose of SCOTUS, to debate and decide constitutionality of law.
It is when they create law, as in Roe vs Wade, that they abandon their stated purpose.
Nothing anywhere says that we have to accept SCOTUS decision without question. It is up to the other two branches of government and the American People to hold their feet to the fire to make decisions based on sound, Constitution-based reasoning in the majority opinion. Many of their majority opinions hardly discuss the Constitution at all and when they do, many times only in passing.
Opinions and decisions that clearly ignore or change the original text and intent of the Constitution should not be acceptable to the American People. We are not under an oligarchy. We are under a Constitution Republic and NO branch has permission to change the Constitution outside of Article V.
The states cannot trample on the bill of rights.
They do not have that power or authority.
Incorporating the bill of rights against the states means they have to abide by it too.
The FedGov must abide by it.
That they currently do not is because the people are too busy playing at being citizens rather than being citizens.
The supreme court exists to debate law and act as a check on presidential power.
Wily decision: the court ruled that the states couldn't restrict free speech because that First Amendment right was "incorporated" at the state level by the Fourteenth Amendment, but Gitlow still lost his appeal because he advocated violent overthrow of the government.
Nothing in the Constitution gives the feds the power to enforce the first ten amendments. The states are limited only by those limitations expressly enumerated in the Constitution proper and the 14th Amendment forbidding state segregation laws against blacks. So you are inventing federal powers not in the Constitution if you say that the feds may enforce it upon the states other than those exceptions.
SCOTUS held in the Slaughterhouse cases that 14A protects the privileges and immunities of citizens of the United States but does not protect the same for citizens of a State.
That means that where there is a privilege or immunity guaranteed by the Constitution, the States cannot violate that privilege or immunity. (States can guarantee greater privileges and immunities but not lesser.) That is, in and of itself, incorporation against the states.
There was no constitutional right violated in the Slaughterhouse cases. So 14A was not violated.