At 10:04 PM -0700 8/23/97, Mac Norton wrote:
On Sat, 23 Aug 1997, William H. Geiger III wrote:
Well i think that you also have to take into account the political setting of the times. The Framers of the Constitution were representatives of the States all of which had 1st Amendment protections in their State Constitutions. Their concerns were not with the States but with a Federal Government overriding rights already protected by the States.
Perhaps so, but that says nothing about the federal gov't enforcing the First Amendment to the US Constitution against the states, irrespective of the provisions of their constitutions or other laws. It is a difficult thing to get from "Congress shall make no law" to "No gov't anywhere in this country shall make any law," but we've managed to do it, probably to our credit on the whole.
I don't find it surprising. Besides the more recent, and of course more heavily relied upon, "equal protection" language of the 14th, I think another important factor is this: states admitted to the Union were expected to adhere to and uphold the U.S. Constitution, and Congress even scrutinized states for evidence of this compliance. (And a clue comes from the oaths of office taken by officials in _all_ states, so far as I know: they swear to uphold the U.S. Constitution. Now how well they do this, and whether they adhere to the original intent, is open for discussion. Still, food for thought.) In looking over some search engine returns on this issue, I was drawn to the various religious freedom decisions, such as Epperson v. Arkansas. Here's one summary (from http://www.natcenscied.org/courtdec.htm) "Epperson v. Arkansas: In 1968, the United States Supreme court invalidated an Arkansas statute that prohibited the teaching of evolution. The Court held the statute unconstitutional on grounds that the First Amendment to the U.S. Constitution does not permit a state to require that teaching and learning must be tailored to the principles or prohibitions of any particular religious sect or doctrine. (Epperson v. Arkansas (1968) 393 U.S. 97, 37 U.S. Law Week 4017, 89S. Ct. 266, 21 L. Ed 228) " How much of this decision was based on the 14th Amendment, and how much on other grounds? I think I'll look into look into this, as it's an interesting issue of just when the "Congress shall make no law" evolved into "states shall make no laws." --Tim May There's something wrong when I'm a felon under an increasing number of laws. Only one response to the key grabbers is warranted: "Death to Tyrants!" ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1398269 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."