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Politics : Sharks in the Septic Tank -- Ignore unavailable to you. Want to Upgrade?

To: TimF who wrote (73692)	8/29/2003 7:56:24 PM
From: G_Barr	Read Replies (1) \| Respond to of 82486

Nothing is clear in the constitution. Although, the first amendment clearly states it only applies to Congress, even before the 14th amendment there were numerous proponents of a theory that that it applied to the states, including John Bingham. The bill of rights was commonly seen, both in 1789 and 1868, as statements of natural rights, rights that would exist whether or not set forth in state or ferderal constitutions. Madison himself was luke warm of the idea of a bill of rights as he didn't think they would effectively protect natural rights (as judicial review wasn't clearly established yet) but he did think them useful to remind people of such rights so they would hold their goverments, both state and federal, accountable for breaches of such rights. Nevertheless, Bingham set out to specifically make clear that the federal government could enforce breaches of the rights underlying the first 8 amendments by the states. It was fairly common at the time to refer the bill of rights as "privileges or immunities" since such was the common term for natural rights going back to blackstone. What else would "privileges or immunities of citizens of the United States" mean other than the rights of citizens against the United States primarily contained in the bill of rights. To Bingham, the first amendment wasn't a merely prohibition on Congressional action, but a prohibition of Congress violating the right of liberty of conscious by creating an establishment or abriding free exercise of religion. It is as plausible a reading as any that such prohibition can be equally applied to state lawmakers. There are many plausible readings of almost every constitutional provision. But I hardly think it activism to rule according the the clear intent of the drafter of the prosivion (as well as the other leaders who got the amendment adopted) even if the language is less than clear and even if there was almost no debate on this point.