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Thread: Why does Ron Paul oppose the incorporation doctrine?

  1. #1

    Default Why does Ron Paul oppose the incorporation doctrine?

    I am a Ron Paul supporter from Portland, Or who has donated a lot of time and money. Now I am feeling slightly confused about Paul's position. I was called on it by a friend of mine who is a progressive democrat. I already know what the incorporation doctrine is, but I didn't know how much Ron Paul opposed it. I agree with Ron on about 95% of his stances, but this one I am not sure about... I know this is certainly something that would hard to sell to the people, esp so rapidly.

    This question is for the people who are very familiar with Paul's position. I have already done about 2 hours of research looking at arguments from looking at it from the other side. I realize that Ron Paul's position is just trying to minimize the scope of the federal government over the states. My question is, why oppose the incorporation doctrine? Where is he coming from on this?

    Please, I once again ask that people who oppose Ron's position on this to not chime in. I have already read literally dozens of peoples' arguments against it. I just want to fully understand Ron's justification on this.

    Thanks in advance.



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  3. #2

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    The States and the people never agreed to limit their power / authority to anything other than those subjects expressly delegated to the federal government (mainly in Article I, section 8). The First Amendment begins, "Congress shall make no law . . ." -- it does not say, "Neither Congress nor any of the several States shall make any law . . ." Incorporation is the practice of intellectually-dishonest people who want to amend the Constitution without amending the Constitution.

    The U.S. Supreme Court has adopted "selective incorporation;" in other words, those provisions of the Bill of Rights that the current make-up of the federal courts like are incorporated against the States (i.e., the First Amendment, the Fourth Amendment, etc.) and those not liked (the 2nd Amendment) are ignored.

  4. #3

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    Our rights are inherent, this doctrine assumes they are not...
    To get your answers from the horses mouth: 1-877-Ron-Paul.
    rewritten history with armies of their crooks - invented memories, did burn all the books... Mark Knopfler

  5. #4

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    Quote Originally Posted by bbachtung View Post
    The States and the people never agreed to limit their power / authority to anything other than those subjects expressly delegated to the federal government (mainly in Article I, section 8). The First Amendment begins, "Congress shall make no law . . ." -- it does not say, "Neither Congress nor any of the several States shall make any law . . ." Incorporation is the practice of intellectually-dishonest people who want to amend the Constitution without amending the Constitution.

    The U.S. Supreme Court has adopted "selective incorporation;" in other words, those provisions of the Bill of Rights that the current make-up of the federal courts like are incorporated against the States (i.e., the First Amendment, the Fourth Amendment, etc.) and those not liked (the 2nd Amendment) are ignored.
    Thanks for the response...

    Could you please link me to a few good articles that would make me better informed about this topic? As more people observe this and ask me about it, I would really like to be more informed about the history.

  6. #5

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    Err...I'm curious as to what, exactly, Ron Paul has advocated that violates the incorporation doctrine. The Reconstruction Amendments allow the government (through Congress) to legislate against the state for very limited reasons...even assuming full incorporation, I have yet to hear Ron Paul advocate any of the following through state action:

    Mandatory religion or unprotected speech, gun confiscation, forced quartering of soldiers, arbitrary search and seizures, lack of due process or freedom from self incrimination, or anything to do with taking away juries or establishing guidelines for prosecution. So, what has he said that encourages states to get rid of anything fitting above?
    Something cool that I stumbled upon: The Ron Paul Repository
    http://egocentral.invisionzone.com/i...howtopic=15324

  7. #6

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    Quote Originally Posted by Gorgy View Post
    Err...I'm curious as to what, exactly, Ron Paul has advocated that violates the incorporation doctrine. The Reconstruction Amendments allow the government (through Congress) to legislate against the state for very limited reasons...even assuming full incorporation, I have yet to hear Ron Paul advocate any of the following through state action:

    Mandatory religion or unprotected speech, gun confiscation, forced quartering of soldiers, arbitrary search and seizures, lack of due process or freedom from self incrimination, or anything to do with taking away juries or establishing guidelines for prosecution. So, what has he said that encourages states to get rid of anything fitting above?

    People just refer to the following article where he calls it a phony..

    http://www.ronpaul2008.com/articles/...t-really-mean/

  8. #7

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    Quote Originally Posted by rekced View Post
    People just refer to the following article where he calls it a phony..

    http://www.ronpaul2008.com/articles/...t-really-mean/
    He's actually right though...but even if people disagree just because they like the sound of the phrase "the incorporation doctrine," just understand all the phrase means is applying the Bill of Rights against the states.

    So incorporation of the BoR just means that the states cannot violate our Amendments. Violations would require the type of advocacy my first post addressed.
    Something cool that I stumbled upon: The Ron Paul Repository
    http://egocentral.invisionzone.com/i...howtopic=15324

  9. #8

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    Quote Originally Posted by Gorgy View Post
    He's actually right though...but even if people disagree just because they like the sound of the phrase "the incorporation doctrine," just understand all the phrase means is applying the Bill of Rights against the states.

    So incorporation of the BoR just means that the states cannot violate our Amendments. Violations would require the type of advocacy my first post addressed.

    I desperately need an article that explains more about this.

  10. #9

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    Quote Originally Posted by Gorgy View Post
    Err...I'm curious as to what, exactly, Ron Paul has advocated that violates the incorporation doctrine. The Reconstruction Amendments allow the government (through Congress) to legislate against the state for very limited reasons...even assuming full incorporation, I have yet to hear Ron Paul advocate any of the following through state action:

    Mandatory religion or unprotected speech, gun confiscation, forced quartering of soldiers, arbitrary search and seizures, lack of due process or freedom from self incrimination, or anything to do with taking away juries or establishing guidelines for prosecution. So, what has he said that encourages states to get rid of anything fitting above?

    Please help me understand. I don't see how it matters that Ron doesn't advocate for any of those things. Some states might. Wouldn't people have a hard time accepting that?

  11. #10

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    To understand it requires a little historical detour. America was founded when a successful revolution threw off the shackles of English mercantilism. The founders and revolutionary patriots were fed up with the English system because it allowed a central government to dictate the lives of citizens living far away from it. In essence, they wanted what amounted to home rule; they reasoned that the people of a particular locality best understand the problems they face and the ways to address them (better, at least, than bureaucrats working hundreds or thousands of miles away).

    To this end, they fashioned a government where small, local entities (states) had the most control over people's lives. They did this for a few important reasons. First are those I addressed above. Second is because they knew that problems are easiest to define and deal with on a local level. Third, they wanted to keep the people active and engaged in their daily politics because they knew that an engaged populace is a wary populace. Tyranny does not visit those who remain on guard. Finally, they realized that by allowing numerous types of government to flourish -- since the people of different states would pursue things differently -- liberty would be aided as people moved to places where their viewpoints were shared by others. Rather than have a large, single government that dictated the ways of life for all, the system was designed for a live-and-let-live philosophy of participatory freedom. This system was called "federalism" and prevented a one-size-fits-all approach to government.

    The Bill of Rights was meant to preserve federalism by preventing the central government (through Congress) from forcing all states to emulate one another. In this way, each was designed to be a laboratory where various approaches to life, liberty, and the pursuit of happiness could be developed. States could copy one another's successful policies when their populace thought it appropriate, and the damage of missteps was mitigated because instead of an entire nation pursuing a foolish course, only one state might experiment with something before it was realized to be foolish. Again, this concept is federalism and is at the heart of how and why our Constitution managed to be ratified (the federalist papers explained much of this and helped the ratifiers and states understand the system of preventing centralized tyrrany).

    Anyway, the Bill of Rights NEVER applied to the states in any way until the Reconstruction Amendments were passed. They gave Congress the power to enforce their provisions against states and the incorporation doctrine arose from the 14th Amendment. It does not simply say "Congress can enforce the bill of rights against the states." Instead, the 14th is somewhat ambiguous in its meaning but does guarantee that the privileges and immunities of the citizenry shall not be infringed by the states. The meaning of "privileges and immunities" is quite bizarre...the Supreme Court has alternatively held it to mean absolutely nothing that is judicially manageable to protecting deeply held, "traditional" things (like the ability to access contraceptives, abortion, and in some sense, homosexual sodomy). The phrase has also been used to "incorporate" some of the Bill of Rights against the states (a stance I personally agree with despite the Court's farts in the general direction of "privileges and immunities" including Constitutional guarantees), but all that incorporating those rights mean is that the states are not allowed to violate the provisions of the first 8 Amendments (9 and 10 are essentially impossible for them to violate so they are irrelevant to the discussion).

    If the people authoring and passing the Amendments wanted to incorporate the bill of rights into the purview of Congress, they would simply have said so rather than use a phrase already known to be judicially ambiguous (privileges and immunities). It's true that they had just fought a Civil War and faced down a huge threat from State's Rights ideology carried to extreme levels, but there is no historical reason to believe that the Union states meant to grant pure oversight to Congress over state police powers. If they had, they would have been much less ambiguous about it by saying something like, "No states shall infringe upon the protections enumerated in the Bill of rights or its amendments." They didn't do that because they didn't ever intend to erase the aspects of their self government that made them unique and which served their peoples in ways more responsive than would a central authority's planning.

    Anyway, this all goes back to the idea that even if the bill of rights were completely incorporated, it would only give Congress the ability to overturn violations of our Amended rights. That means a state would have to: establish a state religion or inhibit freedom of the press, disarm its populace (this has substantively happened in states like California, New Jersey, and Massachusetts, and yet the government does nothing...an argument against incorporation?), force the quartering of soldiers into our homes, etc. No states want to do that stuff but, if they did, it would be infinitely easier to interact with the local political system to defeat the effort or move to another state than it is/would be to fight Congress or move to another country.

    That's why federalism was designed and that's also why the incorporation doctrine, although perhaps making a talking point that seems relevant, really doesn't matter. The only trespasses the incorporation doctrine wards off are generally already protected by state constitutions anyway.
    Last edited by Gorgy; 12-18-2007 at 09:08 PM.
    Something cool that I stumbled upon: The Ron Paul Repository
    http://egocentral.invisionzone.com/i...howtopic=15324

  12. #11

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    Quote Originally Posted by rekced View Post
    I am a Ron Paul supporter from Portland, Or who has donated a lot of time and money. Now I am feeling slightly confused about Paul's position. I was called on it by a friend of mine who is a progressive democrat.
    Was this brought up in the context of state anti-abortion and homosexual sodomy laws?

  13. #12

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    This is a matter of historical fact and proper federalism. It should not be taken to mean that Ron Paul thinks you should have your rights usurped by any civil authority - but would you expect federal police to protect the entire 300+ million people from their local governments? States and localities are more than adequately equipped to ensure natural rights.

    Ultimately this will not be a big issue in a Paul administration, and I will bet a silver dollar on that.

  14. #13

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    Wait wait wait, backup, I need some explanation...I understand that the Bill of Rights originally applied just to congress--so that congress could not establish a national religion, etc. But, if we didn't have the incorporation doctrine, could a state establish a state religion? Could the state confiscate firearms? Could the state shut down the press in that state?

  15. #14

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    http://en.wikipedia.org/wiki/Incorpo...ill_of_Rights) - Wikipedia about Incorporation Doctrine.

    "nor shall any State deprive any person of life, liberty, or property, without due process of law" - from the 14th amendment, this section is cited more frequently than the privileges and immunties section to justify incorporation.

    About the application of the 1st of which Ron Paul speaks. It occurs to me that it's logically impossible to reconcile the 1st and the 14th.

    Most of the BoR says things like, the Fed can't do X, or Y, or Z to the people. It becomes easy to say, well, since the Fed can't do X, or Y, or Z to the people, neither can the states, by virtue of the 14th.

    The first amendment reads, in part, "Congress shall make no law respecting an establishment of religion"

    To me (and I'm not sure I'm in the majority here by any means) "respecting an establishment of religion" implies that "an establishment of religion" can be made by the states.

    To me, that section says, basically, States can go ahead and establish religion all they want, and Congress shall make no law respecting that establishment of religion that the State made.

    This interpretation makes sense from a Federalist point of view. Maryland might've been a Catholic state, Pennsylvania might've been Quaker, whatever. And the first amendment protected the States from the Feds from mucking about in their affairs.

    So, if the whole point of the establishment clause is to protect the right of States to make their own decisions about what religion they want from the Feds, how could the 14th amendment be used to nullifty the 1st amendment?

    It's hard for me to explain. "Congress shall make no law respecting an establishment of religion" is the original. "Congress shall make no law respecting an establishment of religion by the States" is the original re-written to make the point more clear.

    "States shall make no law respecting an establishment of religion by the States"
    is the result of the incorporation doctrine.

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    Why would RP be against the incorporation doctrine? That doesn't make sense. He wants MORE freedoms. Why would he be against a principle that would potentially allow the states to infringe upon religious freedom and gun ownership, etc.?

  17. #16

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    Quote Originally Posted by adwads View Post
    Why would RP be against the incorporation doctrine? That doesn't make sense. He wants MORE freedoms. Why would he be against a principle that would potentially allow the states to infringe upon religious freedom and gun ownership, etc.?
    There are several problems with the incorporation doctrine. I focused on it quite a bit in Con Law I, II, III (Criminal Procedure) and American Legal History I and II. I am not sure exactly where I stand with the doctrine but am generally opposed to it. One reason is its over reliance on the United States Supreme Court. Remember, the States are supposed to be Sovereigns.

    But this opens an even larger can of worms that was hotly debated in the Constitutional Convention; the proper role of the judicial branch. Like slavery it was never resolved. So like any good member of a branch John Marshall took the most power he could and Lincoln & FDR tried to take it back. Lincoln tried to arrest the Chief Justice and FDR threatened to pack the Supreme Court until they ruled the way he wanted.

    Of the power of judicial review Jefferson said "This makes the Constitution but a ball of wax in the hands of the judiciary."

  18. #17

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    I'm reading the 14th amendment right now and it's pretty clear to me that it means that the states cannot pass any law that violates the bill of rights, but hey, that's just me.

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    The other thing is that if the incorporation doctrine were fully implemented, Wash. D.C., for example, couldn't have a ban on handguns like it does now.

  20. #19

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    Quote Originally Posted by adwads View Post
    Why would RP be against the incorporation doctrine? That doesn't make sense. He wants MORE freedoms. Why would he be against a principle that would potentially allow the states to infringe upon religious freedom and gun ownership, etc.?

    http://www.ronpaul2008.com/articles/...t-really-mean/ - this is from ronpaul2008.com - called "What Does the First Amendment Really Mean?"

    I'm guessing that if RP is against the incorporation doctrine, it's within this context, primarily.

    Often, there is said to be tension between the 2 religious parts of the first amendment - the "establishment" part and the "free exercise" part.

    Initially, both the establishment part and the free exercise part were meant as limitations on the Feds "Congress".

    Then, incorporation doctrine came along, making a mess of the whole thing (at least regarding establishment and free exercise).

    I'd argue that the easiest way to understand much of Constitutional Law is that
    the Supreme Court is anti-Religion and anti-Gun.

    They don't like school prayer and conclude it's unconstitutional.
    They like gun laws and conclude they're constitutional.

  21. #20

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    Quote Originally Posted by adwads View Post
    Why would RP be against the incorporation doctrine? That doesn't make sense. He wants MORE freedoms. Why would he be against a principle that would potentially allow the states to infringe upon religious freedom and gun ownership, etc.?
    Because it violates the foundations of the Constitution: it is about a division of power among the States, the people, and the federal government. We were not supposed to be protected from our respective State governments by the federal government; the people and the States were supposed to be protected from the federal government.

    Here is a pretty good analysis of the Establishment Clause (the first part of the 1st Amendment) and the incorporation doctrine:

    A Growing Cloud of Confusion--The Supreme Court on Religion

    Friday, October 28, 2005

    Over the past half century, the U. S. Supreme Court has accomplished a feat America's founders would surely have found to be inconceivable--they have created a perverse cloud of confusion over the question of religious liberty and the place of religious language and symbols in the public square.

    Indeed, the confusion is now so pervasive that a consistent understanding of the Court's directives is practically impossible. In just a few short decades, the Court has decided that organized prayer must be removed from the public school classrooms, that religious symbolism must be removed from official seals and emblems, and that all references to a deity must be reduced to a merely ceremonial meaning if they are to be allowed. On the other hand, the federal courts have allowed for the military to pay chaplains, for the words "under God" to remain in the Pledge of Allegiance (at least so far), and for both houses of Congress to employ chaplains and to begin each session with prayer.

    The Court's decisions amount to a form of judicial sophistry. Take, for example, the question of nativity displays on public land. The Court allows that such displays may be allowable, but only if the Christmas scene is surrounded by the commercial paraphernalia of the season. In other words, the Christ child is allowed only insofar as Rudolph the Red-Nosed Reindeer, Santa Claus, and Frosty the Snowman are also present. But in its last session, the nation's High Court pushed its jurisprudence on these questions into even greater depths of confusion. This time, the issue was the public posting of the Ten Commandments.

    Dealing with two separate cases, one from Kentucky and one from Texas, the Supreme Court came to two different conclusions. In two 5-4 decisions, with Justice Stephen Breyer casting the decisive fifth vote in both cases, the Court decided that a Kentucky display of the Ten Commandments was unconstitutional, even as it allowed a display of the same text on the grounds of the Texas Capitol. In other words, a majority of one vote found that the display of the Ten Commandments in McCreary County, Kentucky violated the Constitution, while the display of the Decalogue in Texas was permissible. Confused?

    Professor Stephen B. Presser of Northwestern University's School of Law argues that "for sheer incoherence nothing beats the Court's 'establishment clause' jurisprudence." The First Amendment famously includes two different clauses concerning religion. The positive clause assures that citizens are guaranteed the free exercise of religion. The second, known most commonly as the "establishment clause," reads: "Congress shall make no law respecting an establishment of religion . . . ." That's all.

    How did the Court transform itself into the source of such confusion? Presser, who holds the Raoul Berger Chair in Legal History at Northwestern, explains that the federal courts should have avoided this confusion by avoiding the cases altogether. "One might have thought, indeed, that because the establishment clause only prohibits acts of Congress, and not of the state or local authorities, the Supreme Court has no business telling state and local governments what to do with matters of religion. And, if one thought that, one would be correct, since the First Amendment was passed, in 1791, to prevent the federal government from interfering with the three state-established churches (in Massachusetts, Connecticut, and Virginia) and with the many states which then imposed some kind of religious test for service in their legislatures or for exercise of the franchise."


    So why did the Court enter this dangerous and apparently unconstitutional terrain? The simple answer is: "Because they wanted to." The justices who pioneered the role of the Supreme Court in adjudicating such cases found their opening in a controversial application of the Fourteenth Amendment. That amendment reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As Professor Presser explains, the Court simply declared that the Fourteenth Amendment "somehow changed the meaning of the First Amendment so that 'Congress' ought to be interpreted as meaning 'Any state or local governmental official.'"

    At this point we come face to face with the infamous "incorporation" doctrine that has become the avenue for a vast expansion of federal power and influence. Writing in the October 2005 issue of The American Spectator, Professor Presser explains that this doctrine was an act of "judicial legerdemain," through which the Court simply dictated "that certain fundamental prohibitions against the federal government in the first ten Amendments to the Constitution should also be extended to prohibit acts of state and local government." This, he declares, "is one of the great constitutional usurpations of the modern era, but [it] now goes virtually unchallenged."

    The Fourteenth Amendment was intended to provide no such opening for a vast expansion of federal power. Instead, it was, as Presser explains, "originally designed to ensure that the contract and property rights of the newly freed slaves were not abridged." So good, so far. Nevertheless, "the Supreme Court no longer feels itself bound by that history, and for many years the Fourteenth Amendment has been used by the Court as a tool to dictate what the states can and cannot do in matters of education, religion, abortion, gender, and a whole host of other areas completely unrelated to the original purposes of that provision."

    This crucial chapter in American constitutional history is of tremendous importance. Most Americans remain blissfully unaware of the process whereby the federal government, through its judicial branch, now claims the right and power to determine issues that were never understood by the founders to be within its purview.


    The incorporation doctrine has not gone without criticism. As Presser indicates, Attorney General Edwin Meese did publicly attack the doctrine, only to experience a vitriolic assault. When it comes to the Court's decisions on matters of religion, this leaves the field wide open to those who would argue for the most thoroughly secular shape for America's public life.

    In its last term, the Supreme Court "had an opportunity to resolve the status of the Decalogue in American public life," Presser explains, "but, alas, only sowed further confusion."

    Presser provides a brilliant and concise summary of the two decisions: "When the smoke cleared on the two Ten Commandments cases, the Court had held that the Commandments had to be removed from Kentucky courtrooms, but it was perfectly permissible for them to exist on a monolith outside the Texas legislature. There are nine members of the Supreme Court, and both of these cases were decided by five to four majorities. In each case, Justices Stevens, Souter, O'Connor, and Ginsburg wanted the Ten Commandments banned, and Justices Rehnquist, Scalia, Kennedy, and Thomas wanted them to stay. Justice Breyer believed the Texas display was fine, but the Kentucky ones were not, and, casting the deciding vote in both cases, his views prevailed. A review of the two cases illuminates the sad state of establishment clause jurisprudence in particular, and the general arbitrariness of a majority of the justices."

    In his dissent to the Kentucky ruling, Justice Antonin Scalia cited an earlier decision in writing, "We are a religious people whose institutions presuppose a Supreme Being." In his concurring opinion in the Texas case, Justice Clarence Thomas directly condemned the incorporation doctrine. Presser refers to Thomas's objection as "an acknowledgement as rare among Justices as it is indisputable as a matter of history."

    To his credit, Professor Presser does not oversimplify the complexities in these cases. Instead, he simply asserts that the Court has unnecessarily compromised its own authority in delivering to the nation "this jurisprudential mish-mosh." Much of the confusion would be avoided if the justices interpreted the Constitution in terms of its original understanding. "Original understanding can't clear up everything in constitutional law," Presser admits, "but if the court were more committed to interpreting the Constitution rather than social planning for the Republic, it might well diminish the number of 5-4 decisions rendered on important public issues. Splits of this kind among the Court are not unusual in cases involving race, abortion, gender, or religion, and underscore the arbitrary nature of what the Court has done in all of those areas."

    Professor Presser's review of the Ten Commandments cases helps to clear the air, even as his historical analysis points to the intractable nature of the Court's misadventures.

    Now, when any case involving references to deity in the public square comes before the Court, the ground is clear for proponents of the most radical secularism to have their day. The only mitigating factor in these cases is the personal restraint exercised by at least some of the justices. Some argue that the only reason the Court has not adopted an even more pervasively secularist approach is fear of public outrage.

    Intelligent Christians should look to these developments with concern and with determination to contend for religious liberty. A fundamental and dangerous lie stands at the very center of the secularist argument. If there is no power higher than the state, then the state automatically becomes the highest power on earth. This is a most dangerous assumption, and it opens the door to fascism and unchecked assertions of state power.

    From the very founding of this Republic, presidents, justices, legislators, and citizens have insisted that the nation is accountable to a higher power and a higher law. Of course, many of the Founders were believing Christians. Those who were not were generally deists of one variety or another, united in their denial of raw state power and united in denying the ultimacy of the State. The secularist argument is shipwrecked on the actual wording of the Constitution and the unquestionable beliefs and practices of the Founders.

    Yet, there is a danger on the other side as well. Christians must contend for religious liberty and for the right of citizens to express their deepest convictions and beliefs in the public square. Furthermore we should insist that the state is not ultimate and that the state's actions and laws are accountable to God.

    Nevertheless, we must be honest in acknowledging that public and ceremonial references to deity are not tantamount to statements of belief in the Triune God--Father, Son, and Holy Spirit. The Church bears responsibility to preach and teach the Gospel and to bear witness, without compromise or governmental restraints, to the one true and living God.

    Likewise, the Church should ask for no assistance from the state, but should preach the Gospel on the basis of its own identity, mission, and divine assignment. In other words, even as the United States Supreme Court produces a jurisprudence of confusion, the Church is called to be a voice of clarity and truth.
    http://www.almohler.com/commentary_r...ate=2005-10-28

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    So, let me get this straight...as a resident of California, for example, my right to practice whatever religion I want is granted by the state consitution of California, not by the 1st amendment to the United States Constitution?

    Because the 1st Amendment to the U.S. Consitution only prohibits the federal government from interfering in religion, not the state? So technically, a state could pass a law compelling me to be muslim, for example, and the federal government could do nothign about it because the 1st amendment prohibits the federal government from doing anything about what a state decides to do about religion?

    In this interpretation, the 1st amendment actually seems to be DENYING me the right to practice religion freely by granting the states power over religious issues.

  23. #22

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    Quote Originally Posted by adwads View Post
    So, let me get this straight...as a resident of California, for example, my right to practice whatever religion I want is granted by the state consitution of California, not by the 1st amendment to the United States Constitution?

    Because the 1st Amendment to the U.S. Consitution only prohibits the federal government from interfering in religion, not the state? So technically, a state could pass a law compelling me to be muslim, for example, and the federal government could do nothign about it because the 1st amendment prohibits the federal government from doing anything about what a state decides to do about religion?

    In this interpretation, the 1st amendment actually seems to be DENYING me the right to practice religion freely by granting the states power over religious issues.
    I don't know what's in California's consitution.

    The First Amendment places limits on the United States Government.

    It's the principle of Federalism. The idea that we have different states with different laws, and that's a good thing.

    If I lived in California, I'd vote against the Governor who compelled me to be muslim, or I'd move to one of the 49 other states, to one that had the set of laws that I liked the most. Freedom of choice, gotta love it.

    But, right now, incorporation doctrine applies, apparently the 14th amendment has voided the right of states to establish their own state religions, as explicitly stated in the 1st amendment.

    An argument could be made that the free exercise clause and incorporation doctrine are logically compatible.

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." - Original

    "Congress shall make no law prohibiting the free exercise of religion." - Just the Free Exercise clause

    "Government shall make no law prohibiting the free exercise of religion." - Just the Free Exercise clause with incorporation.

    The last one does make sense, and I don't think that RP has the same problem with that. It's not the "free exercise" + "incorporation" that's the problem, it's the
    "establishment" + "incorporation" that's the problem.

    In theory, California could become officially muslim, and as long as California doesn't pass a law prohibiting you from freely exercising your own religion, it's all good.

    Establishment + incorporation simply makes no sense at all.



    This is interesting, and on topic - http://obsidianwings.blogs.com/obsid..._respecti.html

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    I think I have a good grasp of it now...I'm definetly on the side of full incorporation, however...I don't want a local school district requiring kids to go along with a certain type of prayer, etc.

  25. #24

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    Quote Originally Posted by dircha View Post
    Was this brought up in the context of state anti-abortion and homosexual sodomy laws?

    No.

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    1) Would he allow states to segregate public schools, separate but equal, jim crow-type laws in public, taxpayer-paid public institutions?

    2) Would he allow the states to ban homosexuality/sex?

    3) If the constitution is just for the national government, can the states pretty much ignore all of it if they wanted it?
    "You know not what you are given, but forever will you know what has been taken away from you..."

    "As long as we live beyond our means we are destined to live beneath our means." - Ron Paul at a CNBC Debate in Michigan (10/09/07)

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    Quote Originally Posted by 0zzy View Post
    1) Would he allow states to segregate public schools, separate but equal, jim crow-type laws in public, taxpayer-paid public institutions?

    2) Would he allow the states to ban homosexuality/sex?

    3) If the constitution is just for the national government, can the states pretty much ignore all of it if they wanted it?


    1) NO. Because the 14th was written specifically to take care of these things.

    2) Presumably YES because that's their rights as states (the term is "police power" which is reserved solely for states in issues like crime, morality, health, etc.). I am 100% against restrictive laws like that, but the entire idea of federalism was encapsulated on the first page in my long-ish post. The benefit of allowing states to do things like that is that it keeps the people on their toes, involved, and highly skeptical of the government around them. It also lets each state reflect the values of its people instead of having laws at odds with their needs dictated from a central authority. It's called the states as "laboratories of democracy" principle.

    3) Not all of the Constitution is only for the national government. There are specific -- though few -- provisions that discuss states. The general idea is that the federal government was to be a limited and enumerated government [i]since it is very hard for people to interact with and alter it given that they have a 1/50th constituency at best (less in the house for smaller states). States wrote their own Constitutions and almost all guaranteed speech and religion and the like just like the Constitution (some even more strongly). It's not like the states have unlimited ability to do anything they want because it is a million times easier to keep a state government honest than it is a federal one.
    Something cool that I stumbled upon: The Ron Paul Repository
    http://egocentral.invisionzone.com/i...howtopic=15324






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