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Incorporation via the 14th Amendment

misterman

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Continuing (and advancing, I hope) a conversation from another thread or two.

I will not offer any personal swipes and will ignore any directed at me.

Since the 14th Amendment was passed, the courts have ruled many times that it applies the requirements of the Bill of Rights to state governments most of the time. The idea was that if you are a citizen of the U.S. but a state takes away your rights, you don't really have federal rights anyway. It is called incorporation and it is accepted legal doctrine.

Here's a link explaining it:

Section I of the 14th Amendment states, in pertinent part that:

"...No State shall make or enforce any law which shall abridge the privilege 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."

History
The 14th Amendment was ratified in 1868, shortly after the Civil War. It was created primarily to ensure that the rights of former slaves (freed by the 13th Amendment in 1865) would be protected throughout the nation. The need for the amendment was great, because up to this time the provisions of the Bill of Rights were not enforceable against state governments. This was due to the case of Barron v. Baltimore (1835). In this case, the U.S. Supreme Court held that the provisions of the Bill of Rights were enforceable against only the federal government (and not against state governments) due to the federal structure of the nation. Therefore, without a constitutional amendment justifying federal intervention in the affairs of the states, states hostile to the interests of the newly freed slaves might still legally discriminate against or persecute them.

While some of the amendment's supporters felt that the amendment would incorporate all of the provisions of the federal Bill of Rights to the states, this was not to be. In the Slaughterhouse Cases (1875), the view of these supporters was rejected, and the U.S. Supreme Court held that the "privilege and immunities" clause did not automatically incorporate (apply) all of the provisions of the Bill of Rights to the state. Over time though, the Court began to use the "due process" clause of the 14th Amendment to achieve the same end. The following is a list of all the provisions of the Bill of Rights that have thus far been incorporated by the U.S. Supreme Court to the states through the "due process" clause.
Year and Amendment Constitutional Provision Incorporated Supreme Court Case
1897 Fifth Just compensation clause Chicago, Burlington, Quincy Railroad Co. v. Chicago
1925 First Freedom of speech Gitlow v. New York
1931 First Freedom of the press Near v. Minnesota
1932 Sixth Right to counsel (in capital cases) Powell v. Alabama
1937 First Freedom of assembly/petition DeJonge v. Oregon
1940 First Free exercise clause Cantwell v. Connecticut
1947 First Establishment clause Everson v. Board of Education
1948 Sixth Right to a public trial In re Oliver
1949 Fourth Protection against unreasonable search and seizures Wolf v. Colorado
1962 Eighth Prohibition on cruel and unusual punishments Robinson v. California
1963 Sixth Right to counsel (non-capital felonies) Gideon v. Wainwright
1964 Fifth Right against self-incrimination Malloy v. Hogan
1965 Sixth Right to confront adverse witnesses Pointer v. Texas
1966 Sixth Right to an impartial jury Parker v. Gladden
1967 Sixth Right to a speedy trial Klopfer v. North Carolina
1967 Sixth Right to obtain favorable witnesses Washington v. Texas
1968 Sixth Right to a trial by jury in non-petty criminal cases Duncan v. Louisiana
1969 Fifth Prohibition of double jeopardy Benton v. Maryland
1972 Sixth Right to counsel in imprisonable non-felony cases Argersinger v. Hamlin

It is important to note, though, that not all provisions of the Bill of Rights have been incorporated to the states. In fact, in some cases, the U.S. Supreme Court has expressly refused to do so. For example, in Hurtado v. California (1884) the Court refused to incorporate the Fifth Amendment's grand jury requirement to the states.

Source: Monk, Linda R., 1995, The Bill of Rights: A User's Guide, Second Edition Close Up Foundation), p. 215.

Understanding Federal and State Courts - Educational Outreach
 
The idea was that if you are a citizen of the U.S. but a state takes away your rights, you don't really have federal rights anyway.

The 14th Amendment ensures that the Bill of Rights are granted on the State Level. How does a State taking away a right mean you don't have Federal rights?

from your link:

"...No State shall make or enforce any law which shall abridge the privilege 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."
 
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One of my two fav amendments: 9th & 14th :mrgreen:
 
I haven't had occasion to read other posts regarding the 14th Amendment, so what point are you trying to make regarding the 14th Amendment? There are 5 sections to this amendment so what section concerns you the most? Let me state the amendment here.

AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.

The Bill Of Rights on boortz.com

If you want you might gravitate over to the 26th amendment as indicated above and talk of the pros and cons of 18-year olds voting.
 
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The 14th Amendment ensures that the Bill of Rights are granted on the State Level. How does a State taking away a right mean you don't have Federal rights?

If a state passes a law that, for instance, restricts your freedom of speech, then you have no right to freedom of speech. It's pointless to have a Bill of Rights if one government can still take away all your rights anyway.
 
I haven't had occasion to read other posts regarding the 14th Amendment, so what point are you trying to make regarding the 14th Amendment? There are 5 sections to this amendment so what section concerns you the most? Let me state the amendment here.

Section 1. It says if you are a citizen of a state, you're a citizen of the United States too, so the rights you have as a U.S. citizen can't be taken away by the state government.

The reason I posted this is because in another thread, I explained that the Bill of Rights also limits the powers of state governments due to the 14th amendment. My link shows how this happened. Some people didn't know that, and insisted strenuously that it wasn't true, simply because they didn't know it.
 
The 14th applies our rights, such as the limited ones presented in the Bill of Rights, to the State governments as well. It's not a bad thing in general, so long as the original amendments are held to their words. For instance, the first amendment says that Congress can make no law respecting the establishment of religion, etc. The 14th makes it clear that the State's Congresses can make no law respecting the establishment of religion, etc. Notice, it does not say that the State's cannot put up religious displays on public land. As that is an act of the community, and since the individuals of the community own the land and the local government, they can use it as they like so long as they do not infringe upon the rights of others in the process.
 
The 14th applies our rights, such as the limited ones presented in the Bill of Rights, to the State governments as well.

Thanks for your agreement. I wish you had spoken up earlier, but never mind.

It's not a bad thing in general, so long as the original amendments are held to their words. For instance, the first amendment says that Congress can make no law respecting the establishment of religion, etc. The 14th makes it clear that the State's Congresses can make no law respecting the establishment of religion, etc. Notice, it does not say that the State's cannot put up religious displays on public land.

:roll: The First Amendment also doesn't say anything about not requiring people to pray to Allah five times a day. Nothing in it there. So is that allowed?

You are taking strict construction to absurd extremes.

I maintain that putting up religious displays on public land can indeed be "respecting an establishment of religion." The courts have agreed, many times. You can disagree, but this argument doesn't support you at all.
 
The First Amendment also doesn't say anything about not requiring people to pray to Allah five times a day. Nothing in it there. So is that allowed?

No, as it is a LAW respecting my free expression of religion.

You are taking strict construction to absurd extremes.

No, I'm just not being stupid.

I maintain that putting up religious displays on public land can indeed be "respecting an establishment of religion." The courts have agreed, many times. You can disagree, but this argument doesn't support you at all.

But they can make no law respecting an establishment of religion. You can't take part of the sentence and hold it to it's own. That phrase is part of a sentence, you have to take it within the context of the sentence. You're not. Which is why your argument is crap.
 
No, as it is a LAW respecting my free expression of religion.

And so is a law saying that public land can have religious diplays on it. Are you back on this law thing again?

But they can make no law respecting an establishment of religion. You can't take part of the sentence and hold it to it's own. That phrase is part of a sentence, you have to take it within the context of the sentence. You're not. Which is why your argument is crap.

Everything the government does comes from law. It's called the rule of law. I explained that already. It's clear that the First Amendment wasn't mean just to apply to things that are spelled out directly in laws. That's silly. The government could easily circumvent that. Nobody believes in the huge loophole you want to create. Nobody ever has. Not the founding fathers, not the courts. Nobody.

Quote a SINGLE court case that supports your argument. You can't.

I will go find some cases that explain my position. Give me time.
 
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And so is a law saying that public land can have religious diplays on it. Are you back on this law thing again?

That's not a law. That's the community whom owns the land and the government deciding for themselves sans law as to whether or not they want a religious display on their public land. It in no way infringes upon my freedom of religion, not in the least. As such, they are free to do as they like.

Everything the government does comes from law. It's called the rule of law. I explained that already. It's clear that the First Amendment wasn't mean just to apply to things that are spelled out directly in laws. That's silly. The government could easily circumvent that. Nobody believes in the huge loophole you want to create. Nobody ever has. Not the founding fathers, not the courts. Nobody.

Quote a SINGLE court case that supports your argument. You can't.

I will go find some cases that explain my position. Give me time.

Everything the government does comes from the People. The government does not exist without the People. The government has no power without the People. The People may do as they like with the government so long as they are not violating the rights of others in the process. If the founders wanted something more explicit, they would have had it in there. But even back then, they had religious displays (well it was only Christian then) on public land. While courts can rule one way or another, it is possible in this day and age given the power the Judicial branch has usurped for them to basically legislate from the bench. And in so doing, overstep the boundaries of what is proper for the government. You can appeal to authority all you want, but it does nothing but highlight the natural corruption of the system. The Constitution and Bill of Rights are very clear on this. Congress (and this now means federal and State) can make no law in regards to the free practice and expression of religion.

When people of a community choose to put a religious symbol on their property, they are choosing to express their religion. The government is supposed to stay out of that.
 
That's not a law. That's the community whom owns the land and the government deciding for themselves sans law as to whether or not they want a religious display on their public land. It in no way infringes upon my freedom of religion, not in the least. As such, they are free to do as they like.

No, everything the government does involves law. It's the rule of law. The community doesn't decide anything to do with public land "sans law."

If the founders wanted something more explicit, they would have had it in there.

Yeah right. The Constitution would be a book.

When people of a community choose to put a religious symbol on their property, they are choosing to express their religion. The government is supposed to stay out of that.

Public land IS the government.
 
On this law thing - suppose the Dept. of Commerce adopted a regulation that set Islam as the official religion. That's a regulation, not a law - is it constitutional?
 
No, everything the government does involves law. It's the rule of law. The community doesn't decide anything to do with public land "sans law."

No, everything the government does involves the People. Everything it was authorized to do came from the People. All it's power and sovereignty is rooted within the People. The People tell it what to do. You seem to think that the People have no say in the government, but we created the government. The People own the government. And through it, they can choose to put up religious displays on public land.

Yeah right. The Constitution would be a book.

No, it's that things are supposed to be handled on the State and community level, not the federal. What the federal government was supposed to have proper power over was very small, everything else was left for the States and the People to figure out for themselves.

Public land IS the government.

What? Public land makes laws, public land levies taxes? No, public land is land. Government is government. Some public land is land on which government buildings are constructed. That land is paid for by the tax payers of the community. The public land and the government both belong to the People. And they can use it as they see fit (again, so long as they don't infringe upon the rights of others).

I think you have a very sick opinion of government structure and power.
 
On this law thing - suppose the Dept. of Commerce adopted a regulation that set Islam as the official religion. That's a regulation, not a law - is it constitutional?

The Department of Commerce doesn't have that authority.
 
No, everything the government does involves the People. Everything it was authorized to do came from the People. All it's power and sovereignty is rooted within the People. The People tell it what to do. You seem to think that the People have no say in the government, but we created the government. The People own the government.

Sure. And they do all that by making laws.

And through it, they can choose to put up religious displays on public land.

Not if it violates the Constitution.

What? Public land makes laws, public land levies taxes? No, public land is land. Government is government.

The government owns and manages public land. Whatever policies control the use of public land are made by the government. Simple stuff.

The public land and the government both belong to the People. And they can use it as they see fit (again, so long as they don't infringe upon the rights of others).

Exactly. So long as they don't infringe on the rights of others. Such as First Amendment rights.

You can argue that this isn't an infringement of their rights. But stop arguing that the First Amendment doesn't apply either way.
 
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Sure. And they do all that by making laws.

Part of what the Congress does is make laws.

Not if it violates the Constitution.

And it doesn't

The government owns and manages public land. Whatever policies control the use of public land are made by the government. Simple stuff.

All through the authority and consent of the People

Exactly. So long as they don't infringe on the rights of others. Such as First Amendment rights.

You can argue that this isn't an infringement of their rights. But stop arguing that the First Amendment doesn't apply either way.

It's not a violation of rights. Congress cannot make laws which abridge freedom of expression and practice of religion. Allowing public displays of religious symbols does not do that.
 
Ah, I see. Because it would violate the First Amendment?

They can't make laws which abridge the expression and practice of religion. Public displays of religious symbols does not abridge the expression and practice of religion. Thus the People are not forbidden from erecting such symbols on their public land if they so choose. Making a law prohibiting that is a violation of the 1st as it is a law which abridges the expression and practice of religion (mostly expression in this case)
 
And it doesn't

That's a different issue. Do you agree that it can't violate the Constitution though?

All through the authority and consent of the People

Yes. Fine. The people. You said that.

The people can't violate the Constitution or infringe on other people's rights.

It's not a violation of rights. Congress cannot make laws which abridge freedom of expression and practice of religion. Allowing public displays of religious symbols does not do that.

Okay, we're still talking about whether a local government has to respect rights. Do you agree that a government must respect the First Amendment, including when it makes policies on land it owns?
 
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