Friday, February 11, 2005
Virginia Stirs Incorporation Debate With Claim that the First Amendment's "Establishment Clause" Does Not Apply to States
According to a brief filed yesterday in the Supreme Court by the State of Virginia, the establishment clause of the First Amendment does not apply to the states (Hat tip: Findlaw via How Appealing) .
This attempt to rekindle the "incorporation" debate seems ripe for the members of this blog, many of whom take an interest in the Constitution and in constitutional interpretation. According to the Findlaw column, Virginia filed this brief in the upcoming case of Cutter v. Wilkinson, in which Florida has challenged the constitutionality of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), specifically as it applies to "institutionalized persons" (i.e., prisoners). Apparently, Florida is one of several states experimenting with religious prisons and/or with religious prison wings (the "God Pods" in Iowa), which it seems may violate the Constitution’s establishment clause.
Now the establishment clause appears in the First Amendment, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" (emphasis added). So how is it that such a prohibition is applied to the States, which are clearly not governed by Congress. The answer lies in what has become known as the "incorporation doctrine."
The incorporation debate has its origins in a 1938 case known as United States v. Caroline Products Co., 304 U.S. 144. In that case the Court suggested in footnote 4, what is now the most famous footnote in all of Supreme Court jurisprudence, that:
This language laid the framework for the notion that the Fourteenth Amendment fundamentally changed the interpretation of the Constitution. For example, the Court has held that "[t]he Fourteenth Amendment denies the States the power to ‘deprive any person of life, liberty, or property, without due process of law.’ In resolving conflicting claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment." Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968).
While it is true that full incorporation of the Bill of Rights has never commanded a majority of votes on the Court, the Court has adopted "selective" incorporation, which includes the First Amendment, as well as many, but not all, of the protections of the Fourth, Fifth, Sixth, and Eighth Amendments. See e.g., Fiske v. Kansas, 274 U.S. 380 (1927); Near v. Minnesota, 283 U.S. 697 (1931); DeJonge v. Oregon, 299 U.S. 353 (1939); Hauge v. CIO, 307 U.S. 496 (1940); Catwell v. Connecticut, 310 U.S. 296 (1940); Everson v. Board of Education, 330 U.S. 1 (1947); Mapp v. Ohio, 367 U.S. 643 (1961); Gideon v. Wainwright, 372 U.S. 335 (1963) and others.
Now it is also true that the decision of which protections to incorporate was subject to interpretation. The Court created standards that were vague and erudite such as, "principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental," or "implicit in the concept of ordered liberty" (See Palko v. Connecticut, 302 U.S. 319, 325 (1937)) to describe those protections that deserved to be applied against the States as part of the notion of "Due Process of Law."
So where does Virginia’s argument that the establishment clause shouldn’t apply to the states come from. Well, the short and admittedly cynical answer is the it comes from nothing more than a strict reading of the text of the First Amendment, and merely ignores as inconvenient the last 66 years of Supreme Court jurisprudence. There is, however, another answer, namely the idea comes from Justice Thomas dissent in Elk Grove Unified School Dist. v. Newdow, more commonly referred to as the "Pledge of Allegiance" case. There, Justice Thomas seemed to suggest that maybe the establishment clause doesn’t apply to the states after all. Justice Thomas, who of course doesn’t agree with the notion of stare decisis and the deference that is to be given to prior precedent of the Court, seems to have arguably invited a "Pandora’s Box" if you will of federalism principles that for the most part has been settled law for almost the last three-quarters of a century.
The fact that I disagree with Thomas on this, as well as almost everything else, doesn’t mean that his argument and consequently Virginia’s is without merit. Nevertheless, it seems that at some point we have to decide what the impact of the Fourteenth Amendment had, not only on American jurisprudence, but on the history of our nation. It seems to me that until we settle the fundamental question of what the Fourteenth Amendment was supposed to accomplish and what it means, then we are destined to continue to fight over issues such whether or not the State has the power to impose religion on its citizens. As always comments and thoughts are most welcome.
This attempt to rekindle the "incorporation" debate seems ripe for the members of this blog, many of whom take an interest in the Constitution and in constitutional interpretation. According to the Findlaw column, Virginia filed this brief in the upcoming case of Cutter v. Wilkinson, in which Florida has challenged the constitutionality of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), specifically as it applies to "institutionalized persons" (i.e., prisoners). Apparently, Florida is one of several states experimenting with religious prisons and/or with religious prison wings (the "God Pods" in Iowa), which it seems may violate the Constitution’s establishment clause.
Now the establishment clause appears in the First Amendment, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" (emphasis added). So how is it that such a prohibition is applied to the States, which are clearly not governed by Congress. The answer lies in what has become known as the "incorporation doctrine."
The incorporation debate has its origins in a 1938 case known as United States v. Caroline Products Co., 304 U.S. 144. In that case the Court suggested in footnote 4, what is now the most famous footnote in all of Supreme Court jurisprudence, that:
There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a specific
prohibition of the Constitution, such as those of the first ten Amendments,
which are deemed equally specific when held to be embraced within the
Fourteenth.
It is unnecessary to consider now whether legislation which
restricts those political processes which can ordinarily be expected to bring
about repeal of undesirable legislation, is to be subjected to more exacting
judicial scrutiny under the general prohibitions of the Fourteenth Amendment
than are most other types of legislation. On restrictions upon the right to
vote, on restraints upon the dissemination of information, on interferences with
political organizations. Nor need we enquire whether similar considerations
enter into the review of statutes directed at particular religious, or national,
or racial minorities. Whether prejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect minorities,
and which may call for a correspondingly more searching judicial inquiry.
(internal citations omitted)
This language laid the framework for the notion that the Fourteenth Amendment fundamentally changed the interpretation of the Constitution. For example, the Court has held that "[t]he Fourteenth Amendment denies the States the power to ‘deprive any person of life, liberty, or property, without due process of law.’ In resolving conflicting claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment." Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968).
While it is true that full incorporation of the Bill of Rights has never commanded a majority of votes on the Court, the Court has adopted "selective" incorporation, which includes the First Amendment, as well as many, but not all, of the protections of the Fourth, Fifth, Sixth, and Eighth Amendments. See e.g., Fiske v. Kansas, 274 U.S. 380 (1927); Near v. Minnesota, 283 U.S. 697 (1931); DeJonge v. Oregon, 299 U.S. 353 (1939); Hauge v. CIO, 307 U.S. 496 (1940); Catwell v. Connecticut, 310 U.S. 296 (1940); Everson v. Board of Education, 330 U.S. 1 (1947); Mapp v. Ohio, 367 U.S. 643 (1961); Gideon v. Wainwright, 372 U.S. 335 (1963) and others.
Now it is also true that the decision of which protections to incorporate was subject to interpretation. The Court created standards that were vague and erudite such as, "principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental," or "implicit in the concept of ordered liberty" (See Palko v. Connecticut, 302 U.S. 319, 325 (1937)) to describe those protections that deserved to be applied against the States as part of the notion of "Due Process of Law."
So where does Virginia’s argument that the establishment clause shouldn’t apply to the states come from. Well, the short and admittedly cynical answer is the it comes from nothing more than a strict reading of the text of the First Amendment, and merely ignores as inconvenient the last 66 years of Supreme Court jurisprudence. There is, however, another answer, namely the idea comes from Justice Thomas dissent in Elk Grove Unified School Dist. v. Newdow, more commonly referred to as the "Pledge of Allegiance" case. There, Justice Thomas seemed to suggest that maybe the establishment clause doesn’t apply to the states after all. Justice Thomas, who of course doesn’t agree with the notion of stare decisis and the deference that is to be given to prior precedent of the Court, seems to have arguably invited a "Pandora’s Box" if you will of federalism principles that for the most part has been settled law for almost the last three-quarters of a century.
The fact that I disagree with Thomas on this, as well as almost everything else, doesn’t mean that his argument and consequently Virginia’s is without merit. Nevertheless, it seems that at some point we have to decide what the impact of the Fourteenth Amendment had, not only on American jurisprudence, but on the history of our nation. It seems to me that until we settle the fundamental question of what the Fourteenth Amendment was supposed to accomplish and what it means, then we are destined to continue to fight over issues such whether or not the State has the power to impose religion on its citizens. As always comments and thoughts are most welcome.
# posted by mouldfan : 9:42 AM
