"Constitutionalism" As Slogans, Ctd

A reader writes:

It's certainly true that as a senatorial candidate, Christine O'Donnell has often appeared appallingly ignorant of a great many subjects, and I appreciate Larison's criticism of her in this regard.  However, I must take issue with the following statement of his: "The establishment clause has been wildly and mistakenly misinterpreted so that a restriction created solely to prevent the federal government from imposing a religion on the states has been turned into a general imperative for all levels of government."

With all due respect to Larison, the original purpose of the 1st Amendment has been modified by the 14th Amendment, making it applicable to every level of government, all the way down to school boards. 

It is true that the amendments to the US Constitution listed in the Bill of Rights, as they were originally written, were meant to apply to the federal government only.  However, the Constitution has undergone subsequent amendment.  Namely, the 14th Amendment's Due Process Clause is specifically applied to the states themselves.  The long-standing doctrine of Incorporation has applied "fundamental freedoms" found in the Bill of Rights to the states through that clause. 

This legal doctrine has not seen any sort of serious opposition from either political wing in this country in a long time; in fact the right-wing faction of the Supreme Court of the US recently utilized the doctrine of Incorporation to hold that the gun rights enshrined in the 2nd Amendment are a "fundamental freedom" in McDonald v. Chicago, curtailing states' abilities to restrict gun ownership.  Incorporation doctrine has been employed to apply the 1st, 2nd, 4th, 5th, 6th, and 8th Amendments to the states.  It's neither a new nor a controversial legal doctrine, nor does it require new (mis)interpretations of the amendments themselves, merely that they apply to state governments.

A TPM reader delves into a different part of history to highlight Jefferson's understanding of the First Amendment along church-state lines.

2006-2011 archives for The Daily Dish, featuring Andrew Sullivan

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