Why the 14th Amendment and Federal Courts are Essential to Protecting Religious Liberty

[phkrause]

Have you ever wondered what legal mechanism existed that permitted the legalization of slavery in the United States after the Bill of Rights was ratified in 1791? How it was that men, women, and children were held in bondage after Francis Scott Key wrote the famous words, "land of the free, and the home of the brave" in 1812? How segregation persisted in law until the late 1960s?

http://religiousliberty.tv/fourteenth-amendment-courts-freedom-religious-liberty.html

[pierrepaul]

It's a good article. Many Americans, other than legal historians, are unaware that the Bill of Rights never applied to the states, and that even after the 14th Amendment it took the courts 50-70 years to "discover" that the 14th Amendment was supposed to apply to the states. The Bill of Rights also was never intended to apply to the executive, only Congress (however, the founders did not intend the President to have wide executive powers, Congress was supposed to be the dominant branch of the federal government. So applying the Bill of Rights to the President was not thought to be necessary).

Some time ago I had an argument with someone on clubadventist who claimed that freedom of religion and freedom of speech for all was enshrined in the Bill of Rights back in the 1790s. When I mentioned that the Bill of Rights did not apply to the states, which remained empowered to regulate religion and speech, I wasn't believed. Many so-called "originalists" have no idea how toothless the original Bill of Rights was and have no idea that the purposes of the Bill of Rights was less to promote individual freedom and more to ensure that the federal Congress would not encroach upon matters reserved to the states.

Many if not all states have state constitutions enshrining freedoms similar to those set forth in the federal constitution. Virginia even had a Bill of Rights which predated the federal constitution. But as the author of the article mentioned, federal appellate courts (including the supreme court) don't have jurisdiction to hear purely state matters. (In fact, there is nothing in the Constitution actually appointing the Supreme Court as the final arbiter of constitutional interpretation - the "supremacy" of the Supreme Court came much later and developed slowly over time.) So if the highest state court from state "X" ruled that a law did not violate the state constitution of state "X", that was the end of the matter. In order to get the case into the federal court system, there needs to be a federal matter - which for the last 75 years or so has been the 14th amendment and the "incorporation" doctrine.