The Constitutional Principle: Separation of Church and State
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Fourteenth Amendment
Selective Incorporation

We could discuss this topic for years. People have been discussing this topic for years. Thus, we have decided that the best course to take here is to provide some limited information and a lot of reference material allowing those seriously interested in this topic to do their own research.

The reference material is pretty evenly divided between the pro and con sides of this issue.

by Jim Allison


Ironically the First Fourteenth Amendment

On June 8, 1789 James Madison delivered his long awaited list of proposed amendments to the House of Representatives. After several debates scattered throughout the summer the following is a partial list of the amendments that was passed by the House of Representative and sent on to the Senate.

Note especially Article the Fourteenth. That article, passed by the necessary number of votes called for selective incorporation against the state some of the other Articles. This particular article was defeated in the Senate after secret debate and a secret vote. It must be remember at this particular point in time in American History, the House of Representative represented "the people." It's members were elected directly by the people. The Senate, on the other hand, represented the states. It's members were selected by the state legislatures.

It is ironic that this particular Article was numbered fourteen and that it called for selective incorporation of other amendments in the "Bill of Rights package" against the states. It is interesting that it was passed by "the people's" representatives, but defeated by the state's representatives. It is very ironic that another Article also numbered fourteen was passed some 79 or so years later and that it would, in time be used to selectively incorporate other Articles of the "Bill of Rights package" against the states.


August 17, 1789-- First Federal Congress (Amendments)

The committee then proceeded to the fifth proposition:

Article I, Section 10 between the first and second paragraph, insert 'No state shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases.'

Mr. TUCKER this is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of constitutions of particular states. It will be much better, I apprehend, to leave the state governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, Sir, to strike out these words.

Mr. MADISON conceives this to be the most valuable amendment in the whole list. If there were any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments. He thought that if they provided against one, it was as necessary to provide against the other, and it was satisfied that it would be equally grateful to the people.

Mr. LIVERMORE had no great objection to the sentiment, but he thought it not well expressed. He wished to make it an affirmative proposition; 'the equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any state.'

This transposition being agreed to, and MR. TUCKER'S motion being rejected, the clause was adopted. (In the final wording of the amendments that was sent to the Senate the transposition had not taken place. No reason for that mistake is recorded.)

Source of Information:

The Debates and Proceedings in the Congress of the United States (Annals of Congress), Joseph Gales. Gales and Seaton, Washington, 1834, August 17, 1789, Vol I pp 749-756.

August 24, 1789

--first Federal Congress (Amendments, references to religion)

House Resolution and Articles of Amendment,

August 24, 1789

CONGRESS OF THE UNITED STATE
In the HOUSE OF REPRESENTATIVES

Monday, 14th August, 1789,

RESOLVED, BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED,
two thirds Of both Houses deeming it necessary, That the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution--Viz. ARTICLES in addition to, and amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

ARTICLE THE THIRD.

Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.

ARTICLE THE FOURTH.

The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall nor be infringed.

ARTICLE THE FIFTH.

A well regulated militia, composed of the body of the People, being the best security of a free Scare, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person

ARTICLE THE FOURTEENTH.

No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.

Teste,
JOHN BECKLEY, CLERK
In Senate, August 25, 1789

Read and ordered to be printed for the consideration of the Senate.

Source of Information:

Creating the Bill of Rights, The Documentary Record from the First Federal Congress, Edited by Helen E. Veit, Kenneth R. Bowling, Charlene Bangs Bickford, The John Hopkins University Press, Baltimore and London, 1991, pp 37-41.

1868

AMENDMENT XIV
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 power to enforce, by appropriate legislation, the provisions of this article.


1897

Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897) Right to just Compensation of the 5th Amendment was incorporated using the Fourteenth Amendment.

Source of Information:

The Evolving Constitution, How the Supreme Court Has Ruled on Issues from Abortion to Zoning. By Jethro K. Lieberman, Random House (1992) pp 260, 670.

March 1, 1897

In a second ruling announced that day, Chicago, Burlington & Quincy Railroad Co. v. Chicago, The court in a business context acknowledged that some of the guarantees of the Bill of Rights might be of such a nature as to be included in the Fourteenth Amendment's guarantee of due process.

Source of Information:

The Supreme Court at Work, Second edition, Joan Biskupic, Elder Witt, Congressional Quarterly, (1997), pp 31.

1898

The General Principles of Constitutional Law in The United States

SECTION L-- Religious Liberty

The Constitution -- The Constitution as originally adopted declared that "no religious test shall ever be required as a qualification to any office or public trust under tile United States." By amendment it was further provided that "Congress shall make no law respecting an Establishment of religion, or prohibiting the free exercise thereof," Both these provisions, it; will be seen are limitations upon the powers of Congress only. Neither' the original Constitution nor any of the early amendments undertook to protect the religions. liberty of the people of the States against the action of their respective state governments. The fourteenth- amendment is perhaps; broad enough to give some securities if they should be needful.[emphasis added]

Source of Information:

The General Principles of Constitutional Law in the United States of America, By Thomas M. Cooley, LL.D., Third Edition, Andrew C. McLaughlin, A.M., L.L B. [Professor of American History, University of Michigan] Little, Brown, and Company 1898, pp 224-227)


A. The Fourteenth Amendment Limited

The central purpose of the Thirteenth (1865), Fourteenth (1868), and Fifteenth(1870) Amendments - sometimes called the "Civil War" or "Reconstruction" amendments - was to prevent discriminatory treatment of the recently emancipated slaves. Within a decade of the Civil War, lawyers nonetheless invoked the expansive phrases of the Fourteenth Amendment to constrain state regulation in business matters. In the slaughter-House Cases - the first decision to construe the amendment - the Court unequivocally refused to use it for this purpose.

. . .

4. The original understanding of the Fourteenth Amendment. Compare justice Miller's characterization of the "one pervading purpose" of the Reconstruction amendments with justice Bradley's broader description of "the mischief to be remedied." Bradley is correct that, in reaction to threats to the institution of slavery, Confederate states had egregiously infringed civil liberties and that this had been a source of national concern.' Although the congressional debates over the Fourteenth Amendment reveal only vague, conflicting, and self-contradictory statements about its purpose and scope,' the clear focus was on racial discrimination, not on civil liberties as such. On the other hand, the language of the Fourteenth Amendment was not limited to racial concerns, and some of its phrases had been used expansively in the debates over slavery preceding the Civil War. Abolitionists indiscriminately invoked natural law, the Bill of Rights, "the inherent rights of citizens," the rights to "protection of the laws" and against the "deprivation of liberty without due process of law" to urge that slavery violated the Constitution.' As Dred Scott indicates, apologists for slavery countered in similar terms.

B. Pressures for Intervention and the Rise of Substantive Due Process, 1874-1890

Commenting on appellant's due process claim in Davidson v. New Orleans, supra, justice Miller wrote:

There . . . exists some strange misconception of the scope of this provision as found in the fourteenth amendment. In fact, it would seem, from the character of many of the cases before us, and in the arguments made in them, that the clause . . . is looked upon as a means of bringing to . . . this court the abstract opinion of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.

Miller attributed a purely procedural meaning to the clause, inducing justice Bradley, who otherwise agreed with the "conclusion and general tenor" of the opinion, to comment that "it narrows the scope of inquiry as to what is due process of law more than it should do."

- Although the Court resisted making substantive use of the due process clause for the next 15 years, by 1890 it essentially embraced the theory of Justice Bradley's dissent in the Slaughter-House Cases. The history of this transformational and the period that followed can be viewed from a variety of perspectives. After briefly describing the rise of economic regulation and the corporate Bar's response to it, we reproduce Lochner v New York which has come to be the symbol of the era of substantive due process. Following Lochner, we raise some 'further questions about the social and intellectual context in which it was decided.

Source of Information:

Processes of Constitutional Decisionmaking Cases and Materials, Second Edition, Paul Brest, Sanford Levinson. Law School Casebook Series, Little, Brown and Company, (1983) pp. 195, 209-211 [This was the text book used to teach Constitutional Law at the University of Virginia School of Law from the 80's into the 90's.]


Jim,

I was debating Church State issues on the Prodigy News BB http://cmty.prodigy.net, under Constitutional Issues. The real debate, it seems, is over Fourteenth Amendment incorporation and, frankly, the other side has an arguable historical case. My personal opinion is that the framers of the Fourteenth Amendment did intend to incorporate the Establishment Clause and make it applicable to the states, but they intended to do so under the privileges and immunities clause of the Fourteenth Amendment, not due process. Then the Supreme Court gave a narrow construction of privileges and immunities in the Slaughterhouse Cases, so it was necessary for future courts to either overrule the Slaughterhouse Cases, which they have not done, or do what Congress intended in the first place, but under the due process clause. Of course, by the time the Fourteenth Amendment was ratified every state had disestablished its official church or churches.

Lee Edwards, Esq.

Source of Information:

Email received from Lee Edwards titled Church and State May 31, 2000. Mr. Edwards is a practicing attorney in Tennessee


Neither the Supreme Court nor legal scholars should be very dogmatic in asserting the intent of the Framers on any aspect of constitutional law. For one reason, the ratifying conventions are reported in such meagerness as to throw very little light on the intentions of these persons who were primarily responsible for the adoption of the provisions. A long study into the intention of the persons responsible for the First Amendment should encourage caution and humility in asserting what they meant in anything other than the broadest perspectives.(13) Again, after monumental research into the intent of those responsible for the Fourteenth Amendment, as requested by the Supreme Court, the court could but observe: "Although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive . . . ."(14) So, indeed, will be most attempts to psychoanalyze "the Framers." The Constitution will always operate on many matters on which the Founding Fathers could have had no intent.

(13). Antieau, Downey and Roberts, Freedom from Federal Establishment (Chicago, 1965).

(14) Brown v Board of Education United States (1925) 276 US 394, (1954) 347 US 483, 98 L Ed 873, 878, 74 S Ct 686, 38 AIR2d 1180, SUPP op 349 US 294, 99 L Ed 1083, 75 S Ct 753.

Source of Information:

Modern Constitutional Law, The States and the Federal Government, Volume II, by Chester J. Antieau, Lawyers Cooperative Publishing, Rochester, New York (1969) pp 716.


When the U.S. Constitution was ratified, only the states were empowered to deal with religion. However, in 1868, following the Civil War, the Constitution was amended so as to make the First Amendment, and in fact the first eight amendments, applicable to the various states. The Fourteenth Amendment contains the following statement: "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law...."

During the congressional discussion of the proposed Fourteenth Amendment, the amendment's floor manager, Senator J. M. Howard (R-Mich.), stated in explaining it, that "to these privileges and immunities . . . should be added the personal rights guaranteed and secured by the first eight amendments to the Constitution." He also said: "The great object of the first section of the amendment is, therefore, to restrain the power of the states and compel them at all times to respect these fundamental guarantees."(18)

In similar fashion, the House of Representatives understood that the purpose of the Fourteenth Amendment was to make the Bill of Rights applicable to the states. Rep, John Bingham (R-Ohio), who was called by Justice Hugo Black "the Madison of the Fourteenth Amendment," stated that the amendment was intended to overturn Barron v. Baltimore (1833), in which the Supreme Court had held that the Bill of Rights was not applicable to the states.(19)

FOOTNOTES:

(18) Congressional Globe, 39th Congress, 1st Session. pp 2765

(19) Ibid., pp 1088-90. See also Congressional Globe, 42nd Congress, 1st Session, Appendix, p. 150, where Bingham restated his intention in drafting the 14th Amendment.

Source of Information:

Religious Liberty and the Secular State, The Constitutional Context, By John M. Swomley, Prometheus Books, Buffalo N Y (1987) pp 61, 72.)


Pro and Con Articles

[I am sure this is not all the articles that might be out there, but I suspect that this list gives a good view of both sides of the issue.]


Congressional Globe. 39th Cong., 1st Sess, (Washington, I).C.: Blair and Rives, 1866.

The Globe, 42nd Cong. 1st Ses., 1871. Appendix, p. 150).


Court Cases

Journal Articles

Books

Books --Publication Dates Unavailable

SOME URLS


The following list shows when each provision in the Bill of Rights was incorporated in the 14th Amendment:

If anyone wants the case name for the following incorporations, please email us.

Source of Information:

The Evolving Constitution, How the Supreme Court Has Ruled on Issues from Abortion to Zoning. By Jethro K. Lieberman, Random House (1992) pp. 258, 260.

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