Implicit cutbacks on 1st Am protections
Michael deHaven Newsom
mnewsom at LAW.HOWARD.EDU
Fri Dec 22 17:27:16 PST 2000
I think that Akhil Reed Amar is on to something when he argues that "in
the very process of being absorbed into the Fourteenth Amendment,
various rights and freedoms of the original Bill may be subtly but
importantly transformed..." (Amar, The Bill of Rights at 223). I think
that he is talking about substance, not merely application.
> Mr. Newsom wrote:"I am suggesting that the 1st Amendment does not
> survive the Civil War
> untouched, nor does it survive the 14th Amendment untouched either.
> (Of some
> relevance, perhaps, I happen to think that Incorporation makes some
> however messy the justification therefor may appear to some.)"
> In my view, it is precisely incorporation that causes the problem for
> Mr. Newsom's position. Here's why: Prior to the 14th Amendment
> (well, actually, prior to the 1940s), the states were free to do what
> they pleased with regard to religion, limited only by their own state
> constitutions (which, by the way, were often stricter than the federal
> constitution, at least with regard to funding for sectarian schools).
> Thus, in the unlikely event that a state wished to require a Christian
> bookstore to hire without regard to religion, the state would have
> been free to do so without any federal free exercise considerations
> coming into play at all. But assuming that the privileges or
> immunities clause incorporated the first 8 amendments (as John Bingham
> himself suggested in an 1871 speech and even the Slaughterhouse Court
> implied in dicta), the states are now bound by the federal free
> exercise clause. Thus, the 14th Amendment's incorporation _does_
> change First Amendment guarantees -- not in substance, but in
> application. After incorporation, there is a colorable argument that
> the free exercise clause (and freedom of association) are implicated
> if a state is so relentless about eradicating all potential proxies
> for racial discrimination that it dictates religion-based hiring terms
> of religious enterprises. Mr. Newsom says that my argument pits the
> 14th Amendment against the 1st -- but doesn't his argument pit the
> Equal Protection Clause against the Privileges or Immunities Clause?
> I'm assuming that P or I is the proper locus of incorporation, by the
> Stuart Buck
> ----- Original Message -----
> From: Michael deHaven Newsom
> To: RELIGIONLAW at listserv.ucla.edu
> Sent: Thursday, December 21, 2000 3:55 PM
> Subject: Re: Implicit cutbacks on 1st Am protections
> > To say that the 14th A "cuts back" the 1st A. loads the
> > dice. The problem is that the values that arguably lie
> > behind each amendment have to live with each other. If
> > one were to give the 1st Amendment the force or reading
> > that some on this list have suggested, the 14th Amendment
> > would lie in tatters.
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