The Incorporation Doctrine Harms Religious Freedom

In my previous post I talked about religious and non-religious civil rights. I noted that in this post, I’d write about how our federal government has confused who to defend.

Prior to the twentieth century, the Supreme Court explicitly believed that the Bill of Rights was limited to the federal government and not the states. This is evident in Barron v. Baltimore (1833). Chief Justice John Marshall believed the Bill of Rights “contain(s) no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Thus, the Bill of Rights (believe it or not) did not restrict what States could do, such as limiting speech, behavior, or expression of religion.

United States v. Cruishank (1876) also confirmed this view. This understanding is the only way to understand why it is the Supreme Court never took up ideas like prayer in school, whether or not a valedictorian could mention Jesus in a speech or if cheerleaders could hold up Bible verses during a football game. The simple fact is, they knew it was not the federal government’s role (as described in the Constitution). After all, the first amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This means the federal government was going to stay neutral.

It wasn’t until the twentieth century that the Supreme Court began to bind the states to the federal constitution. This process is called the Incorporation Doctrine (incorporating the Bill of Rights into the state level). The justification for doing so is under the due process clause of the fourteenth amendment. However, this is a gross misinterpretation of the historical context and exclusive intention of that amendment. One of the earliest instances of the Incorporation Doctrine was Gitlow v. New York (1925), regarding freedom of speech. Benjamin Gitlow was charged for passing out pamphlets called “The Left Wing Manifesto.” The Supreme Court convicted Gitlow because his pamphlets called for a revolution and over-throwing of government. But to agree with the Court’s thinking is to miss the point: the federal judiciary made a ruling that should’ve stopped at the state level.

For our purpose, important federal court cases came in 1940, Cantwell v. Connecticut, and 1947, Everson v. Board of Education. These cases incorporated at the state level the right to free exercise of religion (and thereby the abolition of prohibiting religions) and the prohibition for states to establish a state-sponsored religion. Some might think that this was a good step toward tolerance of other religions, but are missing two important points. First, if the state governments are to enforce laws against evil behavior, why not outlaw worshipping Satan? Secondly, the tolerance of religions begs the question that the means don’t justify the ends. The federal government overstepped its bounds, and now we’re reaping worse consequences because of it. Federal religious persecution aside, the Supreme Court began persecuting the natural law in 1973 (Roe v. Wade) and 2003 (Lawrence v. Texas). States no longer had the power to punish abortion or sodomy.

It is vital to understand the history of the Incorporation Doctrine because social conservatives want to appoint justices that are pro-life and anti-sodomy to reverse the laws. But they’re mistaken. The purpose of the judicial branch was to interpret laws, not make them. Sometimes there are incorrect interpretations. The way to fix it is to have the legislative branch pass laws that would clarify and then nullify these poor interpretations.

For example, the Sanctify of Life Act of 2011 would nullify Roe v. Wade and other federal judicial rulings relating to abortion. It would allow States to punish abortion doctors and protect the rights of the unborn person. This is the way to undo the power grab that the Incorporation Doctrine gives the federal judiciary. The last thing we want to do is appoint justices who change the law to be in their favor (because we’ll still have the Incorporation Doctrine). We should return to the freedom the Founders allowed and let the States hash it out. In that way, we’d have 50 different views so people could create or move to the society that suits them best.

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