Redstate

The decision was 5-4, with Justice O'Connor proving the vote for the majority.  Talk is that she is planning to spend more time in Arizona next year due to her husband's failing health.  Let's hope that she is indeed announcing her retirement today and will be replaced by someone that will quickly flip this decision 5-4 the other way.

It's time for Sandra Day O'Democrat to go.  For several of the big cases in recent memory, she's been the crucial swing against us.  The private property decent was one of the few good stands she's made in recent years.

O'Connor, though on the "wrong" side of things has been fairly consistent in supporting individual rights against the government.  Now, many times that involves new and interesting "rights" we didn't know we had, but in a case like Kelo where the right is so clearly stated in the Constitution, it was not surprising that O'Connor was on the conservative side.

At least when O'Connor has erred, she's erred on the side of individual liberty - at least as she saw it.

According to SCOTUSblog, there was no announcement of any retirements today, and the Court has recessed.  Looks like the news will wait until later in the week.

Let the speculation continue!

that if Rhenquist didn't announce today, he either (a) won't retire this year or (b) will wait to announce until his next round of chemo is over (sometime in the early fall).

I'm betting that he won't step down at all this year.

flipped the '00 election to Dubya.  Hey, get rid of her, I don't mind.  Have Bush jr. nominate another Souter.  By the way, anti-sodomy laws play in to the hands of the Left, so I wish O'Connor had gone the other way on that too.

As for the Ten Comandments, they are kinda in the Bible.  The bible is kinda a religious document.  Do Scalia, Thomas, Rhenquist and Kennedy think it isn't?  Secular purposes.  What a crock.

The first amendment says Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.

Public buildings are built and maintained by public funds, which are allocated through budget bills, which are laws made by Congress.  You can put Ten Comandments monuments on every street corner, as long as they're privately funded and maintained.  Keep them out of public buildings.

How does a 10 commandment representation become "establishment of religion."

I understand how it violates the separation of church and state, but that phrase is conspicuously absent from the Constitution.

The First Amendment say CONGRESS shall make not law.  It does not say that the states shall make no laws.  That is pure interpretation based on somewhat dubious bases - the incorporation of the Establishment Clause into the 14th Amendment to apply to state governments was hardly clear, and is still a contentious subject in legal circles.

Now, riddle me this, yes the Ten Commandments are in the Bible.  But do you deny that they influence American (and most Western) legal codes?  If not, then how exactly did it come to pass that virtually all of the Commandments dealing with relations between persons are enshrined in positive law (murder, theft, perjury, adultery in some places)?  To deny that the Ten Commandments has some secular application is to basically say that anything that hints of religion is verbotten.

If that is your argument, we should get the Mint and Pinting office to start reminting the money to eliminate "in God We Trust."  We should get rid of "under God" from the pledge.  We should prohibit chaplains in the armed forces.  Bar Congress from having Chaplains and prayers recited at the opening of each legislative day, prohibit schools from closing for any holiday of a religious nature, and dozens of other acts that would conform the country and its culture to your radical secularism.

The "separation of church and state" has been carried much farther than anybody who wrote the First Amendment understood it would go.  It even goes beyond what Jefferson (who actually used the words "separation of church and state" would probably be comfortable with).  The radical secularists should do a little more than invoke Jefferson - they should learn the actual history of the "right" they pretend to vindicate.

Any nominee the President comes up with is going to set off a feeding frenzy.

It seems likely that O'Connor also wants to step down.

I bet the Chief is waiting - he will let O'Connor step down; allow the PResident to nominate someone - perhaps someone not quite as conservative as some in the base would like - who will still be harshly criticized.  After the critics expend a lot of money and energy and such fighting the President's choice to replace O'Connor, they will have little left to put up a second fight.

Once the first choice is confirmed, maybe in late summer, the Chief steps down and the President gets a second choice, probably more conservative than the first.  The Left has fewer resources to expend on another fight.  And the public will be less interested in going through another highly public and contntious battle about a nominee that quickly.  The nomination moves along "easier" than what one might otherwise expect, possibly with few attacks on the personal life and ideology of the nominee.

At the very least, it's a possibility that the Chief is surely considering.

That's what this all boils down to.  Corruption of the uniquely American guarantee promising "freedom of" religion into "liberty from" religion.  That bitter taste in the Kool Aid the ACLU acolytes are drinking is called Marxism, and it is the hallmark of modern secular humanism.

a carving of the 10 commandments on the edifice of the supreme court building? ( i may be wrong, but i think there is one)

There is.  And I believe the decision in the Kentucky case (striking the display) specifically references the Supreme Court's frieze and says that some instances are acceptable.

In the other case (the one from Texas), the display was upheld.  I think the decision there may have been 6-3

The Bible also mentions that murder is wrong, are laws that ban murder too religious?  Should we revoke them because Congress shall pass no law...

Look, I'm not a defender of imposing religion on anyone.  But I fail to see how having a replica of the 10 commandments infringes on one's right to worship as they please.  Maybe the locality should take it down, but it isn't unconstitutional.

I read somewhere recently that SCOTUS justices don't like to announce their retirement at the same event where the Court is ending the term (e.g. where they announced today's decisions) because it would be emphasizing the justice as an individual instead of focusing on the Court.  If so, a press release later today or this week is possible, if not likely.

that the judges/justices are as concerned with ideological politics as everyone else is.  My experience has been that federal judges are, by and large, not as concerned with the type of political strategy that everyone around her pontificates about endlessly.

what if a judge posted a copy of the Koran in his courtroom?

phrases that are used in constitutional jurisprudence that do not appear in the Constitution itself.  The argument that there the concept of separation of church and state has no constitutional support because it doesn't appear in the text of the constitution is by far one of the weakest arguments against its application.  There are plenty of other better arguments out there.  When you use that one, you lose credibility with someone like me who, although I fall on the side of separation, think that we are now fighting at the margins (or beyond) of the original intent.  Basically, I can be convinced, but not when you use arguments like that.

At the time the First Amendment was drafted, passed in Congress, and ratified, a majority of states had established churches and used public moneys for the support of religious institutions.

The First Amendment was worded the way it was to do two things.  First, to prevent Congress from establishing a national religion (like the Anglican Church in England).  The Second was to prevent Congress from interfering with the states choices about religion - members of Congress from states like MAssachusetts and New HAmpshire were concerned that Congress would pass laws that would prohibit their state governments from continuing their practice of having state sponsored religious institutions.

Hence the wording of the Amendment.  It had to be that Congress wouldn't legislate to either establish religion or to DISestablish religion.  Thus, the history of the clause made it truly ill-suited to be incorporated against the states via the 14th Amendment (which, by the way, did not happen until the mid-1940s).

"Separation of Church and State" was used by Thomas Jefferson in the debate over whether Virginia would continue to support pastors and other religious institutions.  It was adopted into constitutional precedent by 20th Century Supreme Court justices.  I don't know that Jefferson would necessarily have approved of the use it has gotten.  It is not invalid as a guide, but if it is used, those using it should be more attentive to what its author meant when he said it.

His walls would be quite covered with paper. Probably the ceiling too.

The constitutional significance, it seems to me, should be zero.

"I am the Lord your God, who brought you out of the land of Egypt, out of the house of bondage. You shall have no other gods before me..."

That kind of language is what we're looking at here, not opposition to murder.

All Constitutional technicalities aside, I don't think that kind of statement belongs on government property, period. The line between government and religion is a slippery slope and I'd rather we as a nation didn't try to walk it. There are bigger problems facing America today, y'know? Scuffling endlessly over something like this with little hope of resolution seems kinda petty to me.

If you won't put your Ten Commandments in my face, I won't shove my Koran in yours. Seems fair to me.

and even killing isn't universally banned.  Combat kills, self-defense, justifiable homicide, etc.  The only one that can be directly translated into law is Thou Shal not Steal.  The courthouse shouldn't give the impression that you can be tried and convicted for committing adultery.

The Ten Commandments aren't laws, and justifiably so.  Try to ban coveteousness, for one.  Their authenticity is a religious claim, however they might be transposed to moral behaviour standards.

I never agreed with the "Separation of Church and State phrase" (though even Bush used it in a debate).  The admendment text should be enough.  If you agree with my previous post's logic that allocating resources to these monuments derive from congressional law and you admit that it's a religious document, it doesn't matter whether it infringes on anyone's right to worship.  The thing is unconstitutional.

I would like to hear your argument about how the 14th is not applicable.  That statement has a very Plessy like ring to it.

As for this particular ruling I think it is pretty tricky because the 10 Commandments have both secular and religous value.  Much of our law is based on traditional Judeo-Christian beliefs which are based on the 10 Commandments ultimately.  As such legal entities can have a reasonable argument for displaying them.

However the 10 Commandments also have a strong religous meaning.  And it is this religous intent that is troublesome.  Not matter how you slice it government buildings should NEVER explciitly advocate ANY religion.  

I think when trying to assauge good ol Original Intent it is important to remember that the framers lived in society that was almost universally Christian.  They were more concerned about a particular Chrisitan sect taking control than of non-Christian religions being oppressed.  That is no longer the case today.  

I now understand how Scalia thinks.  Thanks (sincerely).

But this isn't 1783.  If the constitution was deliberately vague about laws respecting the establishment of religion, it means that the interpretation can evolve with time.  If we can't keep religious documents out of public administration and if we don't have a national religion, nothing would legally prevent Sharia law to be plastered all over our courthouses.

C'mon, we don't need to put the 10 coms in courthouses.  It may only confused the uninformed about what the law is really about.

There is scholarly debate about exactly what the word used in the commandment is - some have said that the word is just as likely to be "murder" and not "kill."  This finds support in the fact that the the Torah routinely proscribes death as the penalty for a number of offenses.  If the commandment prohibited killing, then who would carry out the death penalty?

Hebrew was a dead language for millenia before its revival in the 19th century.  There are actually many words in the original Hebrew that are not easily translated due to a lack of sufficient understanding of their context.  The word "to'evah" traditionally translated as "abomination" is one - it appears only 3 times in the Bible, and it is not clear exactly what it was used to convey based on its appearances.

Just because your KJV or NRSV in English says "kill" does not make it "gospel"

..political impact is the Plamegate decision.I hear they also refused to hear the Judith Miller /Matt Cooper appeal.  So either they go to jail or they start singing.  Scandal time.

...But this isn't 1783.  If the constitution was deliberately vague about laws respecting the establishment of religion, it means that the interpretation can evolve with time...

Vague? Which part of

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

do you find vague? "No" perhaps?

The Constitution speaks very clearly on the question. "Congress keep out of it."

The problem with the "Living Constitution" is that there is no limit to the adjustments. If you believe that it "lives" and has to be "adjusted" to meet the times there is a perfectly good mechanism created by the Founders for just such occasions. It's called "Amendment."

In centuries past when people felt the Constitution didn't match the contemporary situation they offered amendments to change it. In the past 50 years people appear to have tired of the cumbersome mechanisms of democracy and prefer the Court to dictate the new rules. Afterall it is so much more efficient than the wearisome effort of getting the people to go along with you. And they may not; the Court is so much easier and more reliable.

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And the Court begins it's sessions with "God Save this Honorable Court."

This entire debate about "Living Document" versus original intent is specious.  One group of people are "interpreting" the Constitution relative to current standards.  The other group is "interpreting" the Constitution relative to the standards of the framers.  But they are both inerpretations.  

Your argument about passing Amendments to fit the times is particularly specious.  It assumes that we know with absolute certainty what the original framers actually meant when they said "Establishment" or "General Welfare" or "Public Use".

Of course it is impossible to determine this because the framers were not a monolithic group that agreed on everything.  The vagueness of parts of the Constitution is, in large part, due to the disagreements of the framers.

I also don't agree with you about how people have "tired" of the Amendment process.  Historically people have used the Amendment process to CLEARLY define or change the Constitution.  However this requires a general mandate from the people.  If you don't have that then you can't change the Constitution.  

There is nothing in the 14th Amendment that says "We are making all aspects of the Bill of Rights applicable against the states."

In fact, there is still no decision by the Supreme Court that expressly says that the 14th Amendment incorporates the entire Bill of Rights in toto as to state action.  The Court has picked out individual rights that they have chosen to apply.

States cannot help but enact laws that touch on religion.  For every establishment case that comes up to the Court one could make the argument that a failure to pass the law in question would open a state to a suit for failure to permit free expression.

For example - people have litigated whether the government can cut off unemployment benefits to a Seventh Day Adventist who refused to take jobs that required Saturday work.  Now, the state refusing such benefits sounds like a violation of free exercise.  But would you be surprised that when the states passed laws saying you can't discriminate against Saturday-sabbath observers they were hauled into court for violating the establishment clause.

Free Exercise and Establishment are a balancing act.  At the national level you can avoid that - Congressional power does not extend to too many places where Establishment issues should really come up.  But they come up every day at the state level, often times for marginal cases like the question of blue laws, unemployment requirements, drug laws, and a host of other routine decisions.

To declare an absolute separation is untenable because it would eliminate things that most people would find unoffensive (example: the provision of services to handicapped and other special needs children who attend parochial schools at state expense).  Yet, to not impose a strict ban has led to the Court constantly wading around in the issue - and for 30 years they come up with a new test and a new standard every time they hear a case.  There is no certainty in Establishment Clause law - there isn't even a vague predictablility.  The Court should enforce Free Exercise against the States, but should be much more lenient with Establishment claims.

And note - many states have clauses similar to the free exercise and establishment clauses in their state constitutions.  Why does there need to be a high federal standard, especially when it's not clear that the clause was ever meant to apply to the states.

The idea of amending the Constitution is specious?  What was being proposed is that, if we want the Constitution to reflect a "modern" interpretation, why not propose an amendment that would clarify the meaning of Establishment?  In the early 20th Century it was not clear that Congress had the power to impose an income tax.  The Supreme Court decided that Congress did not have that power.  So an amendment was proposed, passed, and ratified, that gave Congress that power.  Why not propose an amendment that would provide some contour to "Establishment"?

The Founders certainly differed on the meaning of certain clauses of the Constitution.  This is one of them.  But what has happened is that the Court has enshrined the most extreme view of the clause as the "official" meaning.  Most people did not agree with Jefferson's "separation of church and state language."  That was the extreme position - most wanted a more fluid approach that would allow states governments to make decisions about the extent to which religion should be a part of public life.

The Supreme Court, in the 1940s, took an Amendment (the 14th) that was designed to insure that african-americans had federal protection for certain basic rights (like voting, the right to a trial, the right to hold citizenship) that were not being protected by the state governments of the time, and turned it into a weapon that has emasculated the state governments from doing anything.  I doubt that many, if any, of the congressmen and senators in the 1860s were thinking that individuals needed to be protected against state encroachments on religious establishment and were looking to the 14th Amendment as a means to put religion wholly off limits to the states.

There is nothing in the 14th Amendment that says "We are making all aspects of the Bill of Rights applicable against the states."

How do you jibe that statement with the actual text of the 14th....

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.

do you not believe that the Bill of Rights enumerates some of the privileges of citizens?  

Also you made that declatory statement and then proceeded down a path of arguing about the 1st amendment itself and NOT the application of the 14th in regards to the 1st.

However this statements seem to be more subjective than authoritative...

The Court should enforce Free Exercise against the States, but should be much more lenient with Establishment claims

Why?  You say it wasn't designed to apply to the states.  That may be.  But the 14th removes the burden of proving that it originally did.   Also just because the government gets involvement in relgion does NOT mean it is violating the Establishment clause.  There is only a violation when the government advocates, explicitly or implicitly, in favor of a particular religion.  

There is nothing wrong with the Amendment process.  But you are looking to emasculate the Judiciary because you don't like their ruling.  The Judiciary is responsible for officially interpreting the application of the Constitution.  If the Legislature(ie The People) don't like their rulings they can certainly pass an Amendment to change the definitions.

However you arguing for a reversal of powers.  You are suggesting that if the Judiciary wants to change  the interpretation of the Constitution then they should push for an Amendment.  That makes no sense.

If the people of the 1860s wanted to specifically grant African Americans the right to vote, right to trial, and the right to hold citizenship then they should have stated that explicitly.  Matter of fact they did with the 13th and 15th Amendment.  

I find your argument about State's rights regarding religion a little surreal.  Are you suggesting that if a State wanted to pass a law that eliminated the 1st Amendment in that state they should be allowed to?

The First Amendment has many clauses.  Religion is not the only thing in the clause.  But as to Establishment, yes I think there should be significantly more leeway given to states.  The remainder of the rights contained in the Amendment (which are all clearly personal rights - the right to free speech, assembly, press, free exercise) should be enforced against the states absent an amendment that would declare them inapplicable.

And I dispute the notion that the judiciary was created to be the great, inviolable arbiter of what the constitution's language means.  That proposition came from the Court itself, and was not all that popular with the members of Congress at the time (a time during which many members of Congress had been to the Constitutional Convention, had drafted the document and had written the Bill of Rights).  To say that the Supreme Court is inviolable is to say that this country can and should be governed by the will of 5 men and women (since 5 votes is all you need to fix an "interpretation" as the law of the land).

And I was not arguing that judges need to seek amendments.  What was being argued was that The People should go about getting amendments rather than relying on the Court to come up with new and interesting "interpretations" of the Constitution - which often times have very loose (if any) basis in the text (see the "right to privacy" that sprang up in the 1960s to guarantee access to birth control).

I don't see anything "interpretive" about believing the Constitution says what it means and means what it says. It is true that there were difficult and lengthy debates about various parts of the document. But just because they debated does not mean that they did not eventually reach a consensus --- they wrote the consensus down for us, its called The Constitution."

One does not have to know what the Framers meant by "Establishment", or "General Welfare" or "Public Use" to propose an amendment that defines for the 21st Century what we want it to mean now. And if we can't reach a consensus on that, i.e. ratification of an amendment, then we stay with what it says; "Congress shall make no law..." i.e simply stay out of it and leave it to the states and the people to decide.

Of course in this case we don't have a problem with Congress meddling in it, we have a problem with an all-powerful court making law for us combined with a weak willed legislature that will not rein-in the courts.

And clearly "we the people", or at least certain elements of "we the people", have tired of the difficult and uncertain amendment process (and I would extend that to the legislative process as well) as we now rely more and more on the dictatorial powers of courts to decide things for us.

If you find the "Establishment Clause" to be vague or unclear you are free to work on your friends and representatives to propose an amendment that "clarifies" it. But that requires time and effort and is highly uncertain. It is much easier to find a court that will agree with you and simply put their imprimatur on it. And if you don't get what you want from one court, you simply keep bringing it up until you find a court that does go along with you. The "problem" with the amendment is that if you lose you probably don't get another chance.

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There is nothing in the 14th Amendment that says "We are making all aspects of the Bill of Rights applicable against the states."

What do you suppose the framers of the Fourteenth Amendment meant when they wrote:

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.

According to the appendix in Adamson vs California, it appears that the author, Representative Bingham, meant:

"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be -- for they are not and cannot be fully defined in their entire extent and precise nature -- to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

"Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

"Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions,  which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

My reading of that is that the author of the privileges and immunities and due process clauses of the Fourteenth Amendment wrote it in response to previous court decisions which held that the Bill of Rights did not apply to the States and that the Amendment was intended to apply at least the first eight Amendments of the Constitution to the States and per Briggs V Elliot it was intended to be enforced by the Courts rather than confer upon Congress a general legislative power in this area.

What exactly would be your legal argument to suggest that the SCOTUS should pick and choose which aspects of the Bill of Rights should be applied to the States?  Your personal preference notwithstanding I fail to see any argument that supports this.

As for complaining about Marbury, that's your right.  But you are going to find a pretty tiny minority that wants to see Marbury overturned.  Most people today view Marbury as a necessary clarification of the Constitution.

This comment is pure rhetoric...

To say that the Supreme Court is inviolable is to say that this country can and should be governed by the will of 5 men and women (since 5 votes is all you need to fix an "interpretation" as the law of the land).

It's all well and good to wail against the Men in Black ruling the country it isn't very realistic.      While the SCOTUS has made many errors in its history that doesn't change it's role.  But since their role is to interpret the Constitution they will ALWAYS be accused of "creating" law.  But that goes with the territory.

the Supreme Court decided that the privileges and immunities of the citizens of the US did not include the Bill of Rights, and that the states were free to restrict any of those rights.

this started with the slaughterhouse case. http://www.tourolaw.edu/patch/Slaughterhouse/

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow if the proposition of the [p*78] plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

One of these is well described in the case of Crandall v. Nevada. 14 It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution,

to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.

And quoting from the language of Chief Justice Taney in another case, it is said

that, for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;

and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, [p*80] are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered.

that whole thing is supposed to be a cite after the link i provided.

One of the reasons for the debate leading up to the First Amendment had to do with concerns by states about their existing relationship with religion. The amendment was simply intended to prevent the national government from establishing an overriding national religion (a la Church of England) and interfering in the states' existing religious relationships if any.

Assuming that Iowa does not have a similar restriction in their Constitution, if the State of Iowa wants to establish the Baptist Church as the official religion of Iowa why shouldn't they? As long as they get a majority of Iowans to vote in favor of it and do not require non-Baptists to convert and do not constrain their rights to practice their religion, or prevent them from voting, holding property, running for office, enjoying all the benefits of living in Iowa, etc.

True the minority is required to put up with something they don't agree with, but afterall they are in the minority and we do that all the time; I'm required to pay taxes even though I don't like them (although actually that probably puts me in the majority); Dick Durbin is required to pay for the military even though he may think they behave like Nazis. We absolutely need to respect the rights of the minority, we do not need to give them absolute veto over the actions of the majority.

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I know that:

1. I can't see the zeroed comments, so I don't know how offensive they were, and
   
2. I'm a guest here so this might come off as complaining about hospitality--which is absolutely not how it's intended, and
   
3. This is at least the second time in the last few days where large pieces of threads have disappeared--the other time I'm thinking of the zeroed comments were kindly returned and I couldn't for the life of me figure out why they were zeroed in the first place.

Is there any chance I might be able to see the rest of this discussion?  Regardless, thanks very much for the consideration.

It was Breyer that provided the swing between the Texas and Kentucky cases.  O'Connor stuck to one side on these cases.

It would seem that a common thread of some of the recent decisions is one of returning choices to the individual states.

The 10 commandments ruling does not prevent states from making strict rules about display in state facilities.

Similarly, the eminent domain ruling does not force states into creating public/private restrictions. If the people of a state feel that too much power is being given to private interests they can push for state laws with appropriate limits. After all land siezures are all local issues.

Where do we get the authoritative definition of what Establishment means?  Obviously you have your OPINION of what it means but why is your opinion more relevant than anyone else's?

Your argument seems to be that whenever the Constitution doesn't CLEARLY explain what it means then the Supreme Court should but out of it.

So you're ok with Congress using the General Welfare and Commerce clauses to do whatever they want since no one can definitively state what either comment means.  Communism here we come!

And since cruel and unusual cannot be definitively enumerated I guess that states are well within their bounds to torture inmates.  

Whether I personally view the Establishment clause to be crystal clear or not is entirely irrelevant.

When it comes to the first and fourth amendments, I think that Breyer has a pretty good idea of what they were intended to do.

I don't always agree with Justice Breyer on issues like abortion, states' rights, etc., but he sometimes votes the way I would vote.

The Supreme Court ruled 5-4 that a granite pillar with the text of the Ten Commandments could remain on a courthouse square in Texas.

Thank goodness it wasn't a pillar of salt.

it doesn't include the wording and Moses is shown along with other figures of "lawgivers" like Confucious I think....

I remember reading an interview with the artist a while ago and if I remember correct he tried specifically to avoid the religious context while embracing the historical context

for the period in question.  I believe Bingham did mean to prevent states from denying rights laid out in the Bill of Rights to all Citizens, and did intent to make the federal government the protector of civil rights with the 14th amendment.  However, the Supreme Court at the time disagreed with that interpretation of the 14th, and it took many years to overcome this interpretation. For this narrow interpretation see my post above about the slaughterhouse cases.

We should be more concerned with what the folks who ratified the thing thought it meant. Respectfully, I'd submit that they never had any idea that it yanked 1-8 onto the States.

Are we supposed to discern what hundreds of people thought?

. . . from some of the reasoning of the Slaughterhouse cases and begun at least a partial incorporation of the Bill of Rights. While I agree that it is problematic that it took the courts so long to reach that point, if that was the original intent behind the Fourteenth Amendment (and everything I've read suggests that it was) then it seems to me that if one who believes in an orginalist approach, then we ought to argue for a total incorporation of the Bill of Rights which I believe is Justice Thomas' position.

BTW: how did you get a copy of the Congressional Globe from that period?  I've been working off of Law Review articles and cases myself and would love a chance to read the entire thing just to make sure that Justice Black wasn't selectively quoting ;)

That were apparent at the time. Furthermore, there was ample testimony and pontification in each record where each legislature considered the Amendment. It is not hard to piece together a consensus of what it meant to those hundreds in short order.

The words certainly have meaning.  You don't believe that privileges includes the Bill of Rights?

In your opinion.  What exactly are the privleges that they imply are protected?

If a State passes a law that outlaws speech against that State would you find that acceptable?

Do you also feel that Plessy was a proper ruling?

I haven't read the "entire" text for those years, but i did read a book called "The Reconstruction Amendments' Debates" edited by Alfred Avins.  The book is about 500 pages long (hardback) and is the text of the Congressional Globe relevant to the 13th, 14th and 15th amendments.  I found it to be a fascinating read, if very, very long - 3 columns of text per page, the pages are very large and the print very small.  If you are interested in Bingham, I would suggest reading it, as he is a central figure in the debates on the 13th and 14th amendments especially.

Those privileges extant by the internal laws and constitutions of the several States. When the words "United States" was used then, it was a plural, not a singular.

Acceptable is different from "a good policy idea" or "Constitutional."

No. And that's a cute logical leap.

if the unintended consequences end up sinking people who make things like DaemonTools, FTP programs, CDex, MD5, BitTorrent, etc.  Heck, even email can facilitate copyright infringement especially if they can be massive file dumps like Gmail.

By the way, if anyone comes across an audio of this please post a link.  I'd love to hear the 9 most esteemed people in the U.S. say "Grokster" out loud.

that the court moved from the interpretation of the Slaughterhouse cases and to the current one.  

I bring it up in disucssions on the 14th because many people don't seem to understand that the way the 14th amendment is interpreted now is not how it always was, and that it took the better part of 100 years for the current interpretation to appear in full.  - if you read some of the dissenting opinions in cases dealing with the 14th amendment starting with in the 1890's (i think) and continuing through the early 1900's you will see the beginning of the change in how it was interpreted. my own research on the 13th, 14th and 15th amendments was more to do with the origins of the amendments than how they were used later, and in particular I focused on the idea that these amendments fully implemented the ideals of the Declaration of Independence - which wass not an original idea on my part, but I found it compelling and found many, many quotes in the debates on the amendments where the ideals of the Declaration were called up and direct references made.

the Bill of Rights, if I remember right, the Congress as a whole did not mean it to.  There was MUCH debate on the amendment.  The phrase "priveleges and immunities" is vague, and purposely so.  Why? It is vague because getting the votes necessary to pass it through Congress required the vagueness.  Just as Congress today has problems coming to a consensus, Congress had problems then, even with a massive Republican majority.  Without the vagueness it would have been blocked by those who felt it did either too little or too much.

That said, the debates in Congress are on the record and can be read if you wish to.  I have read a book that is an edited version of the Congressional Globe dealing with the 13th, 14th, and 15th amendments. The debates are lengthy with many eloquent arguments on both sides.  

The supreme court originally went with a very narrow interpretation and, if i remember correctly, did draw upon the Congressional debates a bit, although they did not use the argument of the author of the first section of the 14th amendment, John Bingham.  As time has gone on that narrow interpretation morphed into the wide open interpretation that is current today.

There was by no stretch of the imagination any accord that it meant that incorporation was a fait accompli. Indeed, that's been the meat of the incorporation battle since it started: Those of us on the losing side kept pointing out that you have to read more than is there to get incorporation.

to point out that the time period of the writing of the 14th amendment was a period in which the verb ARE was used with The United States, rather than the verb IS as it is today.

However, the period in question was the one in which the shift was being made between ARE and IS.  It might not have been obvious to all at the time, but the Civil War is the event that changed the country from a group of states that were more of a confederation, into a truely singular nation as we understand the United States of America to be today.

The period of the 14th amendment immediately followed the Civil War and the effect of the war had not been fully felt yet, but historians today, from what I have read, generally agree that the shift between the verbs ARE and IS was made with the union victory in the Civil War.  

origins of the amendment however, it is clear that the author meant to include the Bill of Rights.

The very narrow interpretation that does not include the bill of rights is problematic in my mind.  It gives leave to the states to take away various rights, which in earlier decades led to Jim Crow laws for example, and the pre-Civil war restrictions on freedom of speech on anything to do with slavery in the south.

personally, I am happy that the opinion has changed and that civil rights are protected by the federal government.

the original interpretation of "priveleges and immunities" by the supreme court made it largely a hollow phrase. (see above post that begins with "for decades")

there are plenty of arguments for your side however, do not think that I deny that.  I just think that the states should not be able to take away rights stated in the US constitution.

also, while I am happy that the 14th is not interpreted narrowly anymore, I think it may have moved too far in the other direction.

Thanks to you all...this isn't the sort of thread you'd see me posting in because I don't know enough about this to add anything substantial.  Relatedly, it's also the sort of thread I learn a lot from.  Thanks.

We would all be better off if the Court followed the admonishments of the Founders.

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson

I guess "Thou shal not murder" just doesn't have the same ring to it.  Still, I don't think it invalidates my point about all ten Commandments.  The other eight are sort of incompatible with the penal code.

I found your comment about "to'evah" translating to "abomination" interesting.  Social cons like to point to the biblical quote "Thou shal not lie with mankind, or with womankind.  It is an abomination" as a condemnation of homosexuality.  What if "to'evah" only meant something like "frowned upon"?  The Bible may not be as clear on this as they think.  Not to mention they tend to ignore all the social justice part.