Bachmann defended her ahistorical views by appealing to the letter that the Danbury Baptists wrote to Thomas Jefferson. She claimed the Baptists were concerned about a "national church" and that was all. This is important for the revisionists because it was Jefferson's reply to the Baptists in which the term "a wall of separation between church and state was coined." The Supreme Court later quoted that phrase to illustrate the system the Founders established, which is why theocrats always point out the term in not in the Constitution. That term is not, the principle it explains, is in the Constitution.
The reality is that the Danbury Baptists never once asked about a national church. What they did was point out that the importance of freedom. They didn't make demands, or ask anything of the President. They merely noted that they supported individual freedom of choice and knew that Jefferson did so as well.
And one huge difference between them and the modern Religious Right was that they defined the purpose of government in Jeffersonian terms. They said that no man should "ought to suffer in name, person, or effects on account of his religions opinions..." This part seems to refer to the smear campaign that the Religious Right of Jefferson's day imposed on him. It was widely disseminated by the big government Federalists that Jefferson was a heathen under the control of a secret conspiracy run by the so-called Illuminati. It was then claimed that Jefferson's philosophy of individual rights and limited government were a plot by heathens to attack Christianity and Government itself.
The Danbury Baptists also explained how they saw government, "the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors." This is a very Jeffersonian concept, and it is one that runs very much contrary to the moralistic views of Michelle Bachmann. The Baptists of Danbury were saying that the one and sole purpose of government is to prevent one person from violating the rights of others. It was not about imposing prayer on students in state educational establishments. It was not about controlling the private lives of "sinners" in order to promote morality. It was not about policing books, or patrolling bedrooms. As they said, the power government does not extend pas the point of preventing people from harming one another.
Jefferson himself had said very similar things and the Baptists knew this. They were telling the president they supported his view of government, a view that is alien to the one that Bachmann, Paul and others take regarding separation of church and state.
And what concern these Baptists expressed was NOT over a national church, but entirely about their rights in Connecticut. They felt the Connecticut constitution did not explicitly grant them freedom. Jefferson's reply concerning that indicated a view of the Bill of Rights, which Paul and Bachmann seem to reject. He wrote, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religions, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."
Note that while the Danbury Baptists mentioned the problem, it was state of Connecticut that concerned, not the federal government. Jefferson, in reply, cited the Bill of Rights, noting it was an "act of the whole American people."Jefferson seemingly felt that the Bill of Rights protections applied to the states. Certainly, why numerous people of Jefferson's day held that view, the passage of the 14th Amendment made it quite clear. After the passage of the 14th amendment, there is little doubt that the rights guaranteed in the Constitution are guaranteed against infringement by the states and federal government both. This is quite different from the conservative views of Ron Paul, who said, "The notion of rigid separation between church and state has no basis in either the text of the Constitution or the writings of the Founding Fathers.
Paul also said that the Constitution was "replete with references to God," when in fact the Constitution doesn't refer to God at all. Paul, like Bachmann, claimed that the "First Amendment was simply intended to forbid the erection of an official state church," and here he means an official national church. As Paul sees it, and I suspect Bachmann would agree, the Bill of Rights simply doesn't apply to the states, which is why he said the Kelo decision was properly decided. The idea that the Bill of Rights being incorporated" by the 14th Amendment, was called "phony" by Paul.
Coincidentally, the debate about the 14th Amendment is one that Moorfield Storey, after whom our institute is named, was intimately involved with. Storey worked as a personal assistant to a major proponent of the 14th Amendment, Senator Charles Sumner. Storey was a staunch supporter of equal rights for all Americans and argued that the 14th Amendment was meant to make clear to all that the Bill of Rights were guaranteed to all Americans against all levels of government. Storey stood before the US Supreme Court in 1917 and argued, according to Howard Meyer's The Amendment That Refused to Die, "that the Fourteenth Amendment forbade a state or city from creating a 'ghetto'—perhaps the first time the name of the Jewish restricted areas of feudal Europe was applied to the areas in democratic America..." Storey was there when the Amendment passed. He worked in the Senate office of a major proponent of the Amendment. Storey did not doubt that it clearly stated that rights guaranteed in the Bill of Rights, must be respected by the states and lower levels of government as well. The Supreme Court agreed with Storey and ruled so: "We think this attempt to prevent the alienation of property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law."
You can keep insisting that anyone who disagrees with you about the validity or scope of the "incorporation" doctrine of the Fourteenth Amendment is, by dint of that view, not a genuine libertarian. Yet that doesn't make it so, nor does it logically paint the bright line that you want to paint.
ReplyDeleteMany do maintain that this doctrine was never intended by those who ratified the Fourteenth, upends the originally intended constitutional scheme, and has opened up vast swaths of central-government despotism in the wake (and bearing the false moral imprimatur) of the war against Southern secession. They have serious, well-considered historical and legal arguments.
Your bringing in a side issue such as that of church-State separation — entirely valid, but largely ungermane — verges on identifying all those who resist the idea of "incorporation" with those calling for an outright theocracy. And with the eras forming the two issues being nearly a century apart, this in turn verges on an abuse of history.
Pt 1: I do not insist that anyone who disagrees with the incorporation view of the 14th amendment is not a genuine libertarian, because being a libertarian has nothing to do with it. What is, or isn't the correct view of the 14th, is not tied to being a libertarian. What I do insist is that such a view is historically and legally inaccurate.
ReplyDeleteLet us start with the plain reading of the Amendment itself, which I think well supports incorporation. Next, we know that the chief author was Rep. John Bingham who openly stated the purpose of the amendment was to clearly incoporate the Bill of Rights in the manner stated in this article. In the Senate the prime moved was Senator Charles Sumner. Sumner also said that the 14th Amendment was meant to clarify that the rights in the Bill of Rights were to be protected at all levels of government.
Then we have Storey, Sumner's chief staff member, who was there for the entire debate saying precisely the same thing. And Sumner, later president of the American Bar Association, argued that point before the Supreme Court which also agreed with that interpretation. In fact, multiple Supreme Courts, over more than a century, have consistently supported the incorporation doctrine. There is widespread consensus among legal scholars on it as well, from across the spectrum.
On the other hand you argue a purely ideological reason to pretend it means something other than it does. You claim it "opened" up central governmental powers. That is not a legal argument, nor is it an argument based on the intentions of the authors of the amendment and what they publicly stated was its purpose. That is purely an ideological argument that says, you believe it does this, therefore you don't like it, therefore it isn't what it clearly is. You are interpreting it by whether it fits your ideology, not whether the history supports it.
And then, I can't help but note the dead give away. The people who argue against this tend to be on the far Right, tend to be associated with racist groups like the League of the South, and tend to be supporters of the racist, totalitarian Confederacy. And you use their neo-confederate sloganeering. You can't mention the Civil War, that is not ideological enough, you call it the war against Southern secession.
Pt 2. Now I do know one of the prime people who argue for this neo-confederate view. And he wrote a book on the constitution, not that he has training in law, constitutional or otherwise. And his works are purely ideological, but often good. And we were at a conference together and he asked what I thought of his work. I told him that most of it was good but I thought the chapter on the 14th was wrong. He then said that he got pretty well beat up over that chapter by libertarian scholars and then admitted it was the worst and weakest chapter in the book and he would have to rethink the whole thing. But that doesn't prove him wrong.
ReplyDeleteHowever, the open statements of the main proponent in the House of Representatives, about the nature of the 14th Amendment, coupled with the publicly stated views of the main proponent in the Senate, do give a lot of credibility to the incorporation theory. Add into that Storey's confirmation and the fact that we have had multiple justices of the Supreme Court confirm this view for well over a century. On the other side we have a small band of neo-confederates with no legal training, pushing a very obvious ideological agenda, claiming otherwise.
Sorry, but between the two I don't see much to argue about. A tiny gaggle of ideologues, who I know are tied to racist groups and some really nutty theories all over the place, are simply not scholars.
Now, I will note that all the libertarian legal scholars I can think of support the theory I have outlined here. I mean real scholars in constitutional law.
Finally, I did not bring up "a side issue" of church and state. That was the main issue and I was responding to Bachmann's stupid statements about separation of church and state. She brought it up, I replied to her. From that I discussed the 14th because she and other conservatives like Ron Paul, argue the Bill of Rights doesn't apply to the state, precisely because they argue the states have the right to push religion. Both of them have said so.
I was then arguing that the history of the 14th shows the that the First Amendment does apply to all levels of government and that the 14th made this clear and obvious to anyone who reads it without ulterior motives.
Final part: Finally, since I was talking about Bachmann's view of the First Amendment, and how it related to the 14th, to not discuss both periods would have been stupid. It is not "an abuse of history" to discuss how their modern view is in conflict with the historical facts.
ReplyDeleteI will note that you have not offered a single shred of evidence to support to the contrary, other than to make a few borderline rude remarks.
The last point regards your claim that "this doctrine was never intended by those who ratified the Fourteenth." This is about the weakest and most pathetic argument that can be made. The reason it is so pathetic is that there were hundreds of people involved. It included both houses of Congress and thousands of members of the state legislatures that also voted on the Amendment.
Among those few thousand people there were all sorts of opinions, often wildly in conflict with each other. Some people are just ignorant and pay not attention, others have reasons to support other views, even if they know them to be in conflict with the amendment. No amendment, passed by this process, can possible pass with unanimous consensus about what all it means unless it is something as obvious as changing the voting age to 18. Otherwise you will have disagreements, every time, about the ratifiers. If their views are what matters we can't interpret any amendment as having a clear meaning.
What matters is the text as it is plainly written and the publicly stated purposes of the amendment by the authors and sponsors. And those are clearly on the side of incorporation.
What evidence do you have to the contrary? From MSI