United Liberty

There are certainly a plethora of good arguments for state rights, federalism, and transferring more powers to the states vis-a-vis the federal govenrment. There are also a few bad ones.

T. Kurt Jaros at Values & Capitalism argues that the “Incorporation Doctrine”—making the Bill of Rights legally binding upon state governments—goes too far, and harms religious freedoms:

Prior to the twentieth century, the Supreme Court explicitly believed that the Bill of Rights was limited to the federal government and not the states. This is evident in Barron v. Baltimore (1833). Chief Justice John Marshall believed the Bill of Rights “contain(s) no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Thus, the Bill of Rights (believe it or not) did not restrict what States could do, such as limiting speech, behavior, or expression of religion.

United States v. Cruishank (1876) also confirmed this view. This understanding is the only way to understand why it is the Supreme Court never took up ideas like prayer in school, whether or not a valedictorian could mention Jesus in a speech or if cheerleaders could hold up Bible verses during a football game. The simple fact is, they knew it was not the federal government’s role (as described in the Constitution). After all, the first amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This means the federal government was going to stay neutral.

It wasn’t until the twentieth century that the Supreme Court began to bind the states to the federal constitution. This process is called the Incorporation Doctrine (incorporating the Bill of Rights into the state level). The justification for doing so is under the due process clause of the fourteenth amendment. However, this is a gross misinterpretation of the historical context and exclusive intention of that amendment. One of the earliest instances of the Incorporation Doctrine was Gitlow v. New York (1925), regarding freedom of speech. Benjamin Gitlow was charged for passing out pamphlets called “The Left Wing Manifesto.” The Supreme Court convicted Gitlow because his pamphlets called for a revolution and over-throwing of government. But to agree with the Court’s thinking is to miss the point: the federal judiciary made a ruling that should’ve stopped at the state level.

For our purpose, important federal court cases came in 1940, Cantwell v. Connecticut, and 1947, Everson v. Board of Education. These cases incorporated at the state level the right to free exercise of religion (and thereby the abolition of prohibiting religions) and the prohibition for states to establish a state-sponsored religion. Some might think that this was a good step toward tolerance of other religions, but are missing two important points. First, if the state governments are to enforce laws against evil behavior, why not outlaw worshipping Satan? Secondly, the tolerance of religions begs the question that the means don’t justify the ends. The federal government overstepped its bounds, and now we’re reaping worse consequences because of it. Federal religious persecution aside, the Supreme Court began persecuting the natural law in 1973 (Roe v. Wade) and 2003 (Lawrence v. Texas). States no longer had the power to punish abortion or sodomy.

This is, quite frankly, a baffling argument. Where, anywhere, has religious freedom been harmed because of the Incorporation Doctrine and the application of the Bill of Rights to the states? Jaros really doesn’t show it, and if he does, it makes absolutely no sense.

Let’s take abortion. Okay, so Roe v. Wade legalized abortion. Christianity (at least most of it) is against abortion. So how, then, does Roe v. Wade prevent Christians from exercising their religion? To exercise their religion, they must not have an abortion. Okay, so they don’t. Roe v. Wade stands. How is their freedom to not have an abortion being infringed?

Or sodomy. Again, Christianity is against it, but how does Lawrence v. Texas infringe on their right to not engage in it?

Nobody’s religious freedom is being infringed in these cases. They still have the freedom to enjoy their own moral code. But therein lies the problem with Jaros’ argument: he is simply not arguing for religious freedom, full stop. He is instead arguing that the Incorporation Doctrine is preventing Christian conservatives from imposing their own moral codes and religion on the rest of the public, who may disagree. I don’t know what dictionary Jaros is using, but that’s not freedom. That’s tyranny.

There’s another point I’d like to address in his blog post as well, one that I find the epitome of baffling. Let me emphasize it:

First, if the state governments are to enforce laws against evil behavior, why not outlaw worshipping Satan?

Well gee, where shall I go with that? Maybe I could bring up the case of the Hutaree, the radical militia who claim they are “Christian warriors” who want to kill government officials and civilians? Or how about Scott Roeder, who murdered Dr. George Tiller, an abortion doctor, in Wichita because of “God’s law” to save babies? The Ku Klux Klan had some explicit Christian ideology behind it’s terrorism of minorities and government officials in the South. Considering this is all evil behavior, perhaps we should outlaw worshipping Jesus Christ?

These are, to use the modern vernacular, redonkulous arguments, and as I said above, have nothing to do with religious freedom. I previously wrote about negative and positive liberty, and that it is a good thing for negative liberty to be applied to all the states. The Incorporation Doctrine is part of that; it is a good thing for religious freedom to be applied. That’s just the American way.