Not the First Amendment I Know

Over at the American Spectator, George Neumayr is arguing that the First Amendment does not protect the building of the "Ground Zero Mosque" or the burning of Korans. 

The truth is that the First Amendment protects neither the Ground Zero mosque nor Jones's burning of copies of the Koran. How do we know this? Because under the real First Amendment, the one written by the Founding Fathers, local communities within states were perfectly free to pass laws prohibiting the construction of particular religious buildings or pass laws that banned book burnings.

In fact, on his interpretation, the First Amendment should protect us against the "tyranny of the minorities" when it comes to religious matters.  His case is that because the various states had preferred state churches when they adopted the Constitution, there's no way that the First Amendment could prevent explicit state preferences for religion:

Six of the thirteen states that signed the Constitution ran established churches. It is a historical fact that the First Amendment was written not to suppress those state churches but to protect them. Those six states would have never signed the Constitution otherwise.

This is an interesting and promising point, one that deserves some consideration.  The rule restricts, as stated, Congress, not other legislative bodies or the executive branch.  But for a very long time, the restrictions on Congress here were taken to be exemplary for how the rest of all governing bodies and governmental executives were to conduct themselves in the US.  Taking it otherwise now contradicts stare decisis about the Constitution.  Moreover, it runs counter to what the 'free exercise' clause is supposed to protect.  In fact, a state must show compelling interest in restricting any religious expression.  So what kind of interest does the state have here?

The notion that the First Amendment requires individual states to treat all religious believers equally was invented out of thin air by judicial activists. . . . The rejection of the real Constitution for the phony "living" one explains today's tyranny of the minority. That tyranny has assumed ironically divergent forms in recent days. In New York City, a majority stands aghast as a group of Muslims tries to build a mosque within blocks of the World Trade Center ruins. In Florida, the majority stands appalled but idle before the pastor of a tiny church who launches an "International Burn-a-Koran Day." Both incidents are, in varying degrees, acts of gross and pointless incivility that do  not truly enjoy constitutional protections, but all public officials can mumble in the face of them is the cliché du jour that Americans have a "right to be wrong."

Wow. To say that actions that are gross and uncivil do not deserve First Amendment protection is just about tantamount to saying that you don't understand the First Amendment, isn't it?  Seriously, most of the stuff in The American Spectator would fail that test, wouldn't it?   Moreover, I will never be able to wrap my head around the idea that Constitutions are written to prevent tyrranies of minorities in a democracy.   Again, saying those sorts of things should be an easy tell that someone doesn't understand what they're talking about.

8 thoughts on “Not the First Amendment I Know”

  1. "The rule restricts, as stated, Congress, not other legislative bodies or the executive branch.  But for a very long time, the restrictions on Congress here were taken to be exemplary for how the rest of all governing bodies and governmental executives were to conduct themselves in the US."

    The various provisions of the First Amendment have been "incorporated" to the states through the Due Process Clause of the 14th Amendment, such that it is now fully applicable to state action. So it is true that as originally drafted the First Amendment was not intended to prevent official state churches, and by effect protected those churches by preventing Congress from designating an official church for the United States; but by the time of incorporation the extension of the First Amendment's Establishment and Free Exercise clauses seems to have been uncontroversial.
    It seems fair to note that nothing in the First Amendment as drafted would have prevented a state from establishing a non-Christian religion as the official state church.

  2. Hi Aaron,
    Thanks for the helpful clarification.  It puts the Constitution itself against Neumayr's crazy interpretation, rather than stare decisis.  Though I wonder if a strict originalist can respond that, because the 14th was part of Reconstruction, it extends only to the features of exclusion that Reconstruction was out to address: specifically, race.  (We'd had a version of this discussion, as pertaining to the 14th's relevance to sexual orientation, earlier.)

  3. It seems to me that Strict Originalists are bound to accept that modifications to the Constitution stand as modified, since the possibility of such modifications are themselves built into the original document.

    I think it would be difficult for anybody to reinvent the word "person", as used in the 14th Amendment, as anything but consistent with the word as used in the remainder of the Constitution. But that said, one of the first things an activist Supreme Court did after the passage of the 14th Amendment was to render its "Privileges and Immunities" Clause meaningless. The selective "incorporation" of the Bill of Rights through the Due Process Clause of the 14th Amendment.
    The recent opinion in McDonald v Chicago avoids the question by exercising deference to precedent ("For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter- House holding."), something that the majority does not do when it wants to change the law (Scalia in Bowers v Hardwick, " I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine.") It's difficult to conceive of a more manipulative practice than "selective incorporation" of the Bill of Rights – the picking and choosing of what rights the Supreme Court deems important enough to be enforceable against state government action – through a provision of the 14th Amendment that cannot be said in terms of text or intent to provide for such incorporation.
    Justice Thomas argues in his dissent that the Court should set aside the history of misinterpretation of the 14th Amendment and incorporate the Bill of Rights through the Privileges and Immunities Clause of that Amendment.  ("The notion that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words." Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamen- tal” rights that warrant protection from nonfundamental rights that do not.)
    At this point in time there are only a handful of rights set forth in the Bill of Rights that don't apply to the states. Just as the decision of when to incorporate (or not incorporate) rights to the states has often appeared politically motivated or outcome-driven, it's not to difficult to see both politics and judicial economy (keeping the issues out of federal court) behind the remaining exclusions. (Except as provided by state constitutions, while defendants have a right to a jury trial in most criminal cases, they do not have the right to a unanimous jury verdict in state court; defendants have no right to indictment by grand jury in state courts; defendants have no protection in state court against excessive bail; civil litigants have no right to a jury trial in suits at common law in state court.)
    It's difficult to see a rationale by which the 7th Amendment, granting the right to jury trial in suites at common law, is not fundamental; but to incorporate that right to the states would undermine many of the mandatory arbitration and "tort reform" decisions of recent decades through which the Court has eroded jury rights of state court litigants. It's not that a public policy argument can't be made for denying jury trials in many civil cases, but I don't need to explain to anybody here the difference between making and evading that argument.
    (I'll note in relation to indictment by grand jury, that has not turned out to be the protection the framers of the Constitution appear to have intended, and there's merit to letting the states proceed through less costly, simpler mechanisms such as preliminary examinations; but that once again is a public policy argument, not one based on the text of the Constitution or "original intent".)

  5. Hi Aaron. Really insightful, thanks.  But, just for the sake of argument, what you have to say to those who say that the interpretation of the 14th Amendment and that of the 7th depends solely on the context of their passage, and to extend their interpretations beyond that runs afoul of the 10th?

    By context of their passage I assume you mean "original intent"? That's a close cousin to textualism – attempting to interpret the Constitution by the plain language of its text, often involving trying to 'objectively' determine the meaning of words and phrases as of the time the Constitution or an amendment was drafted. Original intent looks beyond the language, if necessary, to try to discern what those who drafted the Constitution intended its language to mean, and often involves cherry-picking supportive quotes from historic figures who advanced one position or another prior to or during debate over its passages and disregarding any that contradict the preferred interpretation.
    Although selective incorporation is for the most part a product of the early to mid-20th Century, it's reasonable to point out that of the sitting members of the Supreme Court only one disagrees with the present approach of incorporation – Justice Thomas, who in his McDonald dissent argues that the entire Bill of Rights should be held applicable to the states under the 14th Amendment's Privileges and Immunities Clause. It's also fair to observe that the controversy over the 14th Amendment is not whether it intended to extend additional protections against acts by state governments, but emerges from the manner in which the Court approached the Amendment after its  Privileges and Immunities Clause was effectively nullified. Thomas offers the position most consistent with the Fourteenth Amendment's actual text; selective incorporation allows justices to make constitutional law based upon their own policy preferences as opposed to anything within the text of the Constitution or its amendments. Certainly, if you look at the plain text it's possible to come up with much narrower constructions, as did the Supreme Court in the <a href=""&gt;Slaughter-House Cases</a>; but it's difficult to reconcile such a narrow construction with the Amendment's history or legislative debate.
    There is no dispute but that, at the time the Bill of Rights was passed, it was intended to limit the actions of the state governments – the debate is over degree. I expect that you'll find few purists who would argue that no part the Bill of Rights was not incorporated to the states through the 14th Amendment. But at the same time you'll find few who are willing to revisit the history and say that selective incorporation violates the letter of the 14th Amendment, even if they defend the odd practice of incorporating through the Due Process Clause, or cannot produce a textual explanation for why the Supreme Court gets to pick and choose which rights are of sufficient import to incorporate.
    Any perceived conflict between the language of the 14th Amendment and the 10th Amendment would have to be resolved in favor of the 14th, as it was passed at a later date and thus amended everything that came before it.
    I think the issue you raise is more clear in a different context, the debate over the scope of the Commerce Clause which, since the 1940's, has been expanded to reach pretty much any human activity. Rehnquist explained the changed approach in U.S. v Lopez, "Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce."
    The controversy over the extension of civil rights protections, for example, to public accommodations arises under the Commerce Clause. (The Bill of Rights itself does not prevent private discrimination, as it only applies to state action.) There are many who argue that the scope of that clause should be rolled back to minimize federal regulation of primarily private activities, with an emphasis on activities that are only marginally related to interstate commerce. When Rand Paul argued that private businesses should not be restricted by civil rights laws, his argument was predicated upon the notion that the Commerce Clause should be narrowly construed.
    I hope that somewhere in there I addressed your question. 😉

  7. The 14th Amendment stuff is interesting.  However, long before that, Jefferson and Madison, among others, were very concerned about state churches and state tests of religion for office.  That's why they drafted the Virginia Statute for Religious Freedom, which spelled out the separation of church and state more explicitly, and was widely influential on other states.  The Wikipedia entry on all this is actually pretty good.  It's useful to recall that the U.S. Constitution was pretty new and its application was being debated, even more actively than it is today.  The same goes for state constitutions.    

Comments are closed.