Are you referring to this? -
Message 19249427
" The fact that there are possible alternative readings does not, in and of itself, invalidate the reading that has taken root. Unless it can be shown that there is a compelling reason to overturn the relevant case law, the court will let it stand."
Yes the courts are unlikely to change its old interpretations on this, but that isn't an argument that the old decisions where correct (or incorrect for that matter)
"For example, the idea of separating the Establishment Clause from the Free Exercise clause is specious. Clearly, the same rationale applies to each: freedom of conscience in one's religious profession. They are reciprocal. "
I agree.
"The further idea that he tries to introduce, that the Establishment Clause has no bearing on the individual, but only on the "People", is silly. The underlying liberty of conscience belongs to the individual, not any group."
But the establishment would be establishment by "the people", or more specifically "the government". An individual, acting as an individual, can not establish religion in the legal sense of the term.
"Once state due process standards were to conform to federal standards, it was reasonable that this be extended to include civil liberties generally, so that the those guarantees belonging to one as a citizen of the United States could not be deprived one as a citizen of a state"
The amendment itself clearly deals with due process. As for the rest accept for "equal protection of laws", it doesn't clearly give any reason to extent these liberties to the states. In many cases the only restriction put on the federal government was the "Congress shall make no law on the issue". It is not a "privilege or immunity" on the federal level before the 14th amendment, but rather a limit on the power of Congress.
In fact the 2nd amendment which has not been incorporated is more specifically a protected right "the right of the people" rather then "congress shall make no law". The 3rd is also a better example of a specific right or privilege recognized by the constitution rather then a restriction on congress and the same goes for the 5th and the 7th.
I think it best that the Bill of rights does also protect us from the actions of state governments so you won't see me leading a campaign to remove the incorporation doctrine but it strikes me as unsupported judicial activism, which irks me even if it accomplishes something positive.
Tim |
