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irishrosem

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Before you begin reading...

Just some quick thoughts before you begin reading. Keep in mind that the First Amendment did not extend to states until the equal protection clause in the Fourteenth Amendment. So, technically, when you read cases that address state involvement in religion (this is prominent among religion and schools), the discussion should focus on the First Amendment viewed through the Fourteenth Amendment. Scholars often note that the Bill of Rights is now often used as a direct read on state limitations, when the Fourteenth Amendment should always be cited and noted.

This seems like a purely rhetorical point. However, Haiman himself notes that during deliberations on the Bill of Rights, Madison proposed an amendment that specifically prohibited states as well as federal government from establishing religion. Madison's proposal was passed by the House but failed in the Senate (8 ). So Congress did intentionally consider and deny the limitations on the state establishment of religion. Haiman also notes the work of Akhil Reed Amar who convincingly argues that the Bill of Rights Congress did not have "protection of individuals" in mind. Their concern was on an imposing federal government "interfering in any way with the right of the states to maintain the established churches most of them had at that time" (21). Therefore, though the Bill of Rights is often viewed as a tool to protect the minority from the imposing majority, it was drafted as a protection of the majority from an imposing government.

Much of this can be discussed in Chapter 2, but I just wanted to note that there is convincing scholarship that demonstrates the original framers, at least the majority of them, did not want the establishment limitations on religion extended to the individual states. That doesn't mean that it isn't right, or even unconstitutional, to do so today

Wed Apr 11, 2007 10:36 am

George Ricker

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Re: Before you begin reading...

In fact, isn't it also true this applied to all the amendments in the original "Bill of Rights?" It's my understanding that the application of the restrictions in the "Bill of Rights" to the states didn't begin until the 1920s with the "Gitlow" case which involved a freedom of speech issue.

Incidentally, I just ordered this book, along with Deep Economy, so I do expect to participate in the discussion. I'm going to be away from my desk for about a week or so. By then the book should have arrived, and I'll get started reading it.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

Wed Apr 11, 2007 12:02 pm


irishrosem Banned Joined: Oct 2006 Posts: 528 Thanks: 0 Thanked: 0 time in 0 post Gender:	Re: Before you begin reading... Garicker: In fact, isn't it also true this applied to all the amendments in the original "Bill of Rights?" There are actually different methods or theories of how and to what extent the Fourteenth Amendment should be incorporated into the Bill of Rights, which I won't get into (unless prodded, of course). What is pertinent to this discussion, however, is that the Fourteenth Amendment guarantees that: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" (emphasis mine). Obviously this is a guarantee of individual liberties. However, the question becomes what do we do with Amendments that are directed, either in part or in whole, at states or populations? Are these also incorporated with the "citizens" and "person" addressed in the Fourteenth Amendment? It would be awkward to enforce rights meant to protect states against the states themselves. This is most obvious with 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." As we consider the Congress's intentions with the First Amendment, along with the incorporation of the Fourteenth Amendment, note that individual liberties were not necessarily the express intention of every original Amendment. So how then should the Fourteenth Amendment be incorporated into the First Amendment
Wed Apr 11, 2007 4:18 pm

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