Supreme Ignorance: ACLU’s Empty Establishment Claims

by P.A. Madison on February 10th, 2007

The American Civil Liberties Union again is suing under the twisted rational the Fourteenth Amendment somehow disables local government from displaying anything remotely religious in nature. The latest victim targeted by the ACLU is the rural Florida county of Dixie, which has a Ten Commandments monument at the steps of its courthouse.

The lawsuit says the monument violates the First and Fourteenth Amendments because it is not part of a historical display and because the uniquely Christian message of the Ten Commandments on a government building could intimidate people with different religious beliefs.

Well I’d say if anyone finds any community supported display in the United States of America “intimidating,” then they better cover their eyes and return to wherever it was they came from as quickly as possible. The Colonies did not fight a war for their independence independent and right to govern their own internal affairs as they deem fit, to later be bullied by either a national government clothed in limited authority or, groups using the courts as their fascist tool in suppressing the right of the people to govern themselves.

ACLU attorney Glenn Katon thinks, “Dixie County is, in effect, thumbing its nose at the Constitution by putting up this display.”

I will argue here that in fact it is the ACLU who is “thumbing its nose at the Constitution,” made possible by a very misguided United States Supreme Court that seems unable to separate facts from fiction. The result of this inability of the court to comprehend the language and history behind the amendment is that organizations, such as the ACLU, can terrorize municipal governments at will through fictional claims and arguments that can be said only be founded upon hogwash.

Under the language of the Establishment Clause the most significant question will always be: Has Congress enacted some law establishing a national church and then compelling by law for persons to worship this establishment, thereby infringing all persons “free exercise” of worship? If the answer is no, then there is no violation.

This question has not been changed with the adoption of the Fourteenth Amendment, and the States surrendered nothing to the national government in regards to rights retained under the original Constitution. Soon after its adoption of the Fourteenth Amendment, the framers established legislative precedent over its meaning and application, something the Supreme Court and the ACLU must ignore at all costs in order for their bogus incorporation theory to be remotely seen has having any semblance of validity.

If the Fourteenth Amendment made the Federal First Amendment a limitation against the power of the States in terms of the States own citizens, its primary author, John Bingham, shot down this idea in an House Report in January of 1871:

The clause of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four section two. The Fourteenth Amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for the enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first eight amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article. [41st Cong., 3d sess., H. Rept.22.]

It was always held by all that the original privileges or immunities under the fourth article never embraced any of the first Eight Amendments. Therefore, no luck in arguing the Federal First Amendment can be incorporated through the Fourteenth’s P&I’s. What about the Fourteenth’s due process clause? Nope, Bingham said that was simply an import of Chapter 39 of the Magna Charta.

After the civil war, the eleven states in rebellion were required to submit new Constitutions that conformed to the provisions of the Fourteenth Amendment in order to have their representation in Congress restored. Not one State Constitution that was found conforming to the Fourteenth Amendment contained anything remotely as disabling either the State legislature or, municipal government, from having anything to do with respecting religion.

In fact, the well-vetted Arkansas Constitution by the 40th Congress, as with most Constitutions, stated that, “Religion, morality, and knowledge” were essential to good government – not the lack of religion.

John A. Bingham said in a pre-Christmas speech in 1869, “to ever remove Christianity from the people’s laws would result in the collapse of morality, leaving evil to triumph over everything good and weak.” Not exactly the words one would expect from someone who allegedly disabled the people under their local governments from having anything to do with religion publicly.

Between 1871 and 1890 there were some seven attempts to amend the Constitution in prohibiting the States from respecting religion in one form or another. For example: In December of 1871, Sen. Stewart proposed a Sixteenth Amendment to the Constitution that would have directly prohibited the States in “giving aid to sectarian schools.”

In an 1875 State of the Union message, President Grant asked Congress to propose another amendment to the U.S. Constitution that would prohibit the States in “granting of any school funds or school taxes, or any part thereof, either by legislative, municipal, or other authority, for the benefit or in aid, directly or indirectly, of any religious sect or denomination…”

It was this presidential recommendation that lead to a proposed Sixteenth Amendment that would had made the Establishment Clause of the First Amendment applicable to the States:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof, and no religious test shall be required as a qualification to any office or public trust under any State. No public property and no public revenue, nor any loan of credit by or under the authority of the United States or any State, Territory, district, or municipal corporation, shall be appropriated to or made or used for the support of any school, educational or other institution under the control of any religious or anti-religions sect, organization, or denomination, or wherein the particular creed or tenets shall be read or taught in any school or institution supported in whole or in part by such revenue or loan of credit, and no snch appropriation or loan of credit shall be made to any religious or anti-religions sect, organization, or denomination, or to promote its interest or tenets. This article shall not be construed to prohibit the reading of the Bible in any school or institution, and it shall not have the effect to impair the rights of property already vested.

Such an amendment would not have been necessary if President Grant (the darling among radical republicans) and Congress understood the Fourteenth Amendment to have directly imposed upon the States and resident citizens therein the entire federal bill of rights.

It is one thing to desire neither federal or State legislatures to publicly support any one religious doctrine with tax dollars over another, but it is another matter entirely to disable local governments from recognizing religious teachings or traditions within individual communities. Not only would such an act mar the U.S. Constitution, it would destroy citizens’ privilege or immunity to collectively respect religious principles or traditions under the great doctrine of self-government.

There is no way in the world the Establishment Clause can be judicially made a limitation against municipal governments through the Fourteenth Amendment without one “thumbing their nose” at both the U.S. Constitution and the Declaration of Independence. Because of the framers own established legislative precedent, and the purpose for which the Fourteenth was adopted to serve, leaves the ACLU (and the U.S. Supreme Court) owing Dixie County an apology.

Related: Misunderstanding Jefferson’s ‘wall of separation’ metaphor


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9 Responses | Leave a Comment
  1. St. Mark says:

    Denying the people the freedom to collectively recognize religious teachings under their local government is forbidden by Article I, Section 4. The court has no shame or respect for their legal obligation.

  2. Larry says:

    In Reply to Dero:

    the blaine amendment was proposed after the courts decided to completely ignore the legislative history of the fourteenth amendment in the slaughter house cases. the amendment is a response to the supreme court neutering the p & i clause, not to any deficiencies in the 14th amendment itself.

    The proposed Blaine Amendment had no such intent. It was in response to President Grant’s SOTU message calling for a public school amendment to the constitution:

    “[I] most earnestly recommend it, that a constitutional amendment be submitted to the legislatures of the several States for ratification, making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all the children in the rudimentary branches within their respective limits, irrespective of sex, color, birthplace, or religions; forbidding the teaching in said schools of religious, atheistic, or pagan tenets; and prohibiting the granting of any school funds or school taxes, or any part thereof, either by legislative, municipal, or other authority, for the benefit or in aid, directly or indirectly, of any religious sect or denomination, or in aid or for the benefit of any other object of any nature or kind whatever.”

    President Grant, December 7, 1875

    Incidentally, this is powerful proof the Fourteenth Amendment did not incorporate the bill of rights against the states.

  3. Dero says:

    In Reply to Larry:

    the blaine amendment was proposed after the courts decided to completely ignore the legislative history of the fourteenth amendment in the slaughter house cases. the amendment is a response to the supreme court neutering the p & i clause, not to any deficiencies in the 14th amendment itself.

  4. Larry says:

    If I am not mistaken, Dero, the court (Everson) used due process as a vehicle for questioning taxes paid to parochial school students to attend school. The thin (5-4) court majority found there was no first amendment issue involved. I seem to recall that it was Thomas Jefferson’s Danbury letter that drew all the attention to the establishment clause, at least to Justice Black. It is no simple matter to transfer a explicit prohibition on Congress to the States without eithers approval.

    I think you are mistaken in believing Bingham’s remarks were taken out of context. He was speaking specifically about the provisions of the fourteenth amendment itself. Also, Bingham made no such reference to the states being unrestrained by the bill of rights. You made that up out of whole cloth.

    He said it had been “judicially determined that the first eight amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.”

    It was Article 4, section 2 that was “deemed necessary for the enforcement as an express limitation” on the states – not the bill of rights. The 14th amendment says nothing about the bill of rights other than through due process and the equal protection of the laws, which Bingham said embodies the Fifth’s “any person” shall not be denied life, liberty or property without due process of law… meaning there can be no discrimination in administering justice.

    You are correct that 14th amendment incorporates nothing but something that states were already required to abide by… and what was that? It was Article 4, section 2. Check out madison’s historical analysis of the 14th amendment… great reading.

    Maybe now you can understand why the Blaine Amendment was proposed.

  5. Dero says:

    For one, the bill of rights is incorporated under the due process clause of the 14th amendment, not the privileges and immunities clause

    for two, the only reason that’s done is because the supreme court originally neutered the privileges and immunities clause by implying that it had no discernible meaning at all. they brought up nothing about the legislative intent of the amendment because the intent was clear. to bring up the intent would undermine their decision.

    so what does that tell us about the quote by bingham you brought up?

    you took it out of context. bingham was saying that the 14th amendment extended no right to vote onto women. that’s all he was talking about. as far as incorporation goes he explains the clause “was deemed necessary for the enforcement as an express limitation upon the powers of the States” then in the next sentence, he explains why the limits were needed (because states were unrestrained by the bill of rights).

    and in all reality, what meaning can you derive from the p & i clause by your vague interpretations? the asinine belief that the 14th amendment incorporates nothing but something that states were already required to abide by?

  6. Jay Shipley says:

    Not a scholar, nor a history buff……but, in all honesty, from a very common man….my opinion of the ACLU is simply this……Anti Christian Losers Union. They have tried repeatedly to eliminate God out of our society. Should they ever succeed, Heaven help us all! We’re borderline now!

  7. Mick56 says:

    The failed Blaine Amendment of 1876 would had made the establishment clause a direct prohibition upon the States if it had been made part of the U.S. Constitution. No one seriously gave it any chance of being ratified by three fourths of the States had it passed the Senate where it was defeated. The ACLU desires to use the courts to accomplish a feat that had been democratically rejected.

    That is a very good point, Mr. Madison!

  8. Larry says:

    Lawrence, I’ve encountered the language once, but with much of the language found here omitted. Most likely it was omitted to not draw attention to the fact it defeats the incorporation argument.

  9. Lawrence Rosanbalm says:

    Mr. Madison:

    I believe this memorial response by Bingham is significant. I cannot recall ever seeing any consideration of this House report under 14th amendment privileges and immunities discussion. I am almost prepared to say it may be the “missing link” scholars have long sought in understanding its intended operation.

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