As mentioned in related threads, regardless what FDR’s activist justices wanted everybody to believe about Thomas Jefferson’s “wall of separation,” the real Thomas Jefferson had clarified the following about “government” power to address religious issues. Jefferson had noted, in terms of the 10th Amendment (10A) nonetheless, that the states had made 10A to clarify in general terms that the states had reserved the power to legislatively regulate our constitutional privileges and immunities, 1st Amendment (1A)-protected religious expression in this example, regardless that they had made 1A in part to prohibit such powers to Congress.
“3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people’: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed [emphasis added]; …” —Thomas Jefferson, Kentucky Resolutions, 1798.
Note that the states had no constitutional check on their 10A-protected power to address religious issues until the states ratified the 14th Amendment (14A), the states committing themselves to reasonably respect constitutionally enumerated privileges and immunities, including freedom of religious expression.
H O W E V E R …
The 14th Amendment did not take away any state powers, in this case the power to reasonably regulate religious expression noted by Jefferson. This is evidenced by the fact that John Bingham, the main author of Section 1 of 14A, had officially clarified, as evidenced by the congressional record, that 14A took away no state’s rights.
“The adoption of the proposed amendment will take from the States no rights (emphasis added) that belong to the States.” —John Bingham, Appendix to the Congressional Globe. (See bottom half of first column)
“No right (emphasis added) reserved by the Constitution to the States should be impaired…” —John Bingham, Appendix to the Congressional Globe. (See top half of 1st column)
“Do gentlemen say that by so legislating we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existance.” —John Bingham, Appendix to the Congressional Globe. (See bottom half of third column)
So it remains that a key question is what happened to 10A-protected state power to regulate (cultivate) religious expression if the states still had such power as evidenced by both the Jefferson excerpt about state power to address religious issues and Bingham’s clarification of the limits of 14A?
The problem is that FDR’s activist justices blatantly ignored Bingham’s statements as they relate to 10A-protected state power to regulate religious issues as evidenced by the following excerpt from Cantwell v. Connecticut.
"The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws [emphasis added]. The constitutional inhibition of legislation on the subject of religion has a double aspect." --Mr. Justice Roberts, Cantwell v. State of Connecticut, 1940.
In fact, reflecting a struggle between state-power ignoring activist justices and justices who respect state powers, Justice Reed had noted the following relationship between the 10th and 14th Amendments.
"Conflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living without which constitutional guarantees of civil liberties would be a mockery." --Justice Reed, Jones v. City of Opelika, 1942.
Again, the reason, imo, that Christians are now being persecuted in the courts is that Christian parents are not making sure that their children are being taught about 10A-protected state power to cultivate religious expression, power now limited by the honest interpretation of 14A.
Note that Jefferson had predicted the consequences of citizen apathy.
“Cherish, therefore, the spirit of our people, and keep alive their attention. If once they become inattentive to the public affairs, you and I, and Congress and Assemblies, judges and governors, shall all become wolves. It seems to be the law of our general nature.” - Thomas Jefferson (Letter to Edward Carrington January 16, 1787)
Again, as a consequence of “show me" apathy of Christians about what the Constitution and its history actually indicates about state powers to reasonably regulate religious expression, city and state officials are not able to defend 10A-protected state power to decide policy concerning religious expression, a privately funded, publicly displayed Christian war memorial in this example.
Thanks for this detailed commentary.