Submitted by Mark Esposito, Guest Blogger
Feigning that some controversy actually exists over the fact of evolution, the Rocky Toppers have decided to grant job protection to teachers who choose to criticize the scientific doctrine. To be quite proper, they have inserted language that stipulates that “this section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine.” But Becky Ashe, the president of the Tennessee Science Teachers Association, is not fooled. She told a subcommittee of the Tennessee House that the Bill “is an anti-evolutionary attempt to allow non-scientific alternatives to evolution (such as creationism and intelligent design) to be introduced into our public schools.”
Seems the famous trial and the movie version (“Inherit The Wind”) are always on the minds of theocrats. Tennessee State Representative Richard Floyd (R) even alluded to them in the floor debate commenting that “since the late ’50s, early ’60s when we let the intellectual bullies hijack our education system, we’ve been on a slippery slope.” Aptly named Republican Sheila Butt even found a way to criticize environmentalists in the debate saying she was told in high school that Aqua Net hair spray hurts the environment. In a conclusion worthy of mention she added, “Since then scientists have said that maybe we shouldn’t have given up that aerosol can because that aerosol can was actually absorbing the Earth’s rays and keeping us from global warming.” Ah, the joys of anti-intellectualism.
The Bill passed the House 70-23 and now goes to the Senate. Hopefully, they reached a stage of high intellectual evolution.
Source: TPM
~Mark Esposito, Guest Blogger
Blouise, We have hat the St. Louis Art Museum several rooms of period furniture and cultural artifacts including weaponry. The suits of armour are small enough to fit me. We have one room that is from the Medieval period, it’s centerpiece is a wall that faces the interior of a room and behind that is a staircase and behind that is the panels that face the ‘outside’ wall. It’s beautiful, ornately carved and burnished hardwood: exquisite! I looked at the stairs and was amazed because they are tiny, like a miniature staircase, they look to be about 2′ wide maximum and the risers are short. A door carved in the wall under the staircase is also very short.
Many of the older room settings have ‘small’ furniture too, a couple of the more rnate ones I at first glance thought to be ‘ladies’ rooms but they weren’t, the ornament and delicacy was a refection of the wealth and the style of the period, the size was a reflection of ‘evolution’. 🙂
BTW, the takings clause is applicable to the states by virtue of the due process clause of the fifth amendment as well as the due process clause of the 14th.
It’s weird that way.
I give up, but I can’t resist commenting on the following:
Buddha: “The Incorporation Doctrine applies to the Constitution as it applies to the states actions, Bob. Unless the Amendment has had the ID applied to it by a court, it can still be part of the Constitution. It’s just not a part of the Constitution that necessarily applies to states actions absent some other enabling legislation or direct application through the 14th Amendment.”
The Court selectively incorporated portions of the first eight amendments into the 14th amendment because by their express terms they applied only to the federal government. An amendment that is not by its express terms solely applicable to the federal government need not be ‘incorporated’ into the 14th.
Amendment: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Enforcement clause therein: “Congress shall have power to enforce this article by appropriate legislation.”
Same design with the 18th Amendment; both have enforcement clauses by which the Fed applied the law to the states. You see see, the inclusion of enforcement clauses made clear that the amendments were not expressly concerned with the Fed, like the BOR, but directly applicable to the states as well.
No, what’s that word, ‘incorporation’ needed.
Buddha: “If it were, then the Feds could make all kinds of Amendments that violate the powers reserved to states simply by Amendment.”
You mean like the 18th Amendment exercising a general penal/police power normally reserved by the states? Or do you mean the Fed promulgating general penal laws under no express authority to do so contained within the constitution?
The 18th Amendment was a straight out amendment with an enforcement clause; doesn’t need a general power penal power within the constitution to exist. But things like federal drug laws, that started out as tax laws because there is no general penal power afforded to the Fed… well that’s a different story entirely now isn’t it?
Buddha: “The Supremacy Clause applies to amendments as they relate to state action so long as that amendment has been incorporated via the ID.”
Again with the broad sweeping statements; again, as shown above with the 13th and 18th amendments, the incorporation doctrine need not apply. They apply to the states by virtue of the language contained therein and they are supreme by virtue of being part of the constitution.
Buddha: “In the other cases you mentioned, they were applied to state actions via other enabling legislation. Other amendments may be the law of the land and they may apply to states but they do not do so via the ID unless they have had Gideon applied to them by a court.”
You lost me again. WTF does Gideon have to do with anything more than incorporating the sixth amendment right to counsel into the 14th amendment?
I give up.
Ok, Blouise.
It’s kind of a good thing anyway. I ate too much and feel a nap coming on. If so, as usual, I’ll have the cats assisting.
Buddha,
This is good. For persons such as myself trying to follow the discussion between you and Bob … well, it’s helpful to be certain I understand the basics …
Blouise,
“Am I correct in my understanding that the BOR was understood initially to regulate the actions of the federal government, not the states and that this changed after the Civil War notably through the 14th Amendment in July of 1868, which could have applied the Bill of Rights to the States via Total Incorporation, but the Supreme Court restricted its use?”
Yes. Absent specific wording about total incorporation, the issues were only settled when challenged in court by state laws that citizens claimed violated their Constitutional Rights due to them as citizens of the United States. Three clauses of the amendment are pertinent to this discussion as the others dealt with issues surrounding the Confederacy.
Only one of the relevant clauses of the 14th Amendment applied directly to standing precedent at the time of adoption and that was the Citizenship Clause which overturned the ruling of Dred Scott (1857).
The second relevant clause of the 14th Amendment, the Due Process Clause, has been used to incorporate other sections of the BOR into the Constitution in such a way as to make the BOR apply to states. This clause is the foundation of the decision in Gideon v. Wainwright, 372 U.S. 335 (1963) which held that failure to provide counsel in criminal cases for defendants who are unable to afford their own attorneys was a violation of their civil rights as U.S. citizens. It is also the basis of later rulings like Miranda v. Arizona 384 U.S. 436 (1966) which relied upon Gideon and the 14th Amendment to determine citizen’s rights to counsel under police interrogation.
The third relevant clause of the 14th Amendment is the Equal Protection Clause which requires each state to provide equal protection under the law to all people within its jurisdiction. The Equal Protection Clause is the basis for Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) which overturned Plessy v. Feguson and made segregated schools illegal.
“Has the Supreme Court practiced selective incorporation, upholding certain individual clauses within each Amendment and rejecting other clauses?”
Yes. I’ll get back to you with a little more detail later, but I’m in the middle of cooking.
rafflaw
1, April 11, 2011 at 6:31 pm
Blouise,
Using those height standards from the 1800′s, I would be a tall man at 5’8″!
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Imagine how George Washington (6’2″) and Abe Lincoln (6’4″) appeared to their fellow citizens.
Buddha and Bob,
p.s. … I was busy trying to think of how I wanted to word my questions and folding clothes from the dryer and putting clothes in the washer so didn’t see all your posts since my last post at 5:48p. If you have answered my questions don’t be insulted … just point me to the post
Buddha and Bob,
Please excuse my baby-lawyer status but I have been following this discussion and have a few questions.
Am I correct in my understanding that the BOR was understood initially to regulate the actions of the federal government, not the states and that this changed after the Civil War notably through the 14th Amendment in July of 1868, which could have applied the Bill of Rights to the States via Total Incorporation, but the Supreme Court restricted its use?
Has the Supreme Court practiced selective incorporation, upholding certain individual clauses within each Amendment and rejecting other clauses?
JT I am sure you hope otherwise but I sincerely hope this site is never famous. I love the witty clique of writers and how they do not suffer fools lightly,gladly or otherwise. Another kick ass read! Thanks to you all and your expensive educations.
Blouise,
Using those height standards from the 1800’s, I would be a tall man at 5’8″!!
“they were applied to state actions via other enabling legislation or the 14th Amendment.”
Sorry. Lap full of cat.
Bob,
The Incorporation Doctrine applies to the Constitution as it applies to the states actions, Bob. Unless the Amendment has had the ID applied to it by a court, it can still be part of the Constitution. It’s just not a part of the Constitution that necessarily applies to states actions absent some other enabling legislation or direct application through the 14th Amendment. If it were, then the Feds could make all kinds of Amendments that violate the powers reserved to states simply by Amendment. You seem to have forgotten that the ID is a judicial doctrine, not a statutory doctrine.
You can bring up Dancing Jesus all you want.
I think you’re just mad you never thought of this line of argumentation.
The logic is solid. You still haven’t proven otherwise. The Supremacy Clause applies to amendments as they relate to state action so long as that amendment has been incorporated via the ID. In the other cases you mentioned, they were applied to state actions via other enabling legislation. Other amendments may be the law of the land and they may apply to states but they do not do so via the ID unless they have had Gideon applied to them by a court.
Bob,
I’d also like to know why you think the Incorporation Doctrine hasn’t been applied to the 13th Amendment.
It couldn’t be because since there hasn’t been a 13th Amendment claim before the court since 1947 and the Incorporation Doctrine wasn’t created let alone used until 1963 (Gideon v. Wainwright, 372 U.S. 335 (1963)), could it?
“That river of time is a real crowd pleaser,” said Mr. Einstein, “Too bad it’s so hard to swim upstream.”
Buddha,
You accused me of having a problem with language comprehension and you expect me to overlook your glaring mistakes?
There was no moving of goal posts; I merely pointed out how you stepped in your own shit.
Me: “To be clear, the incorporation doctrine relates only to the bill of rights (actually 1-8) since they were originally addressed to further restrict the powers of the fed only. Accordingly, incorporation is not a pre-requisite for ‘an amendment’ becoming part and parcel of ‘the supreme law of the land.’ ”
Buddha: “No. But incorporation is a pre-requisite for an amendment being incorporated into the Constitution.”
What does that mean? Amendments are not ‘incorporated into the constitution;’ they are part of the constitution. Specific amendments, i.e. the bill of rights, are selectively incorporated into the 14th Amendment and then applied to the states. Your sentence makes ABSOLUTELY no sense.
Buddha: “To be clear, you still don’t understand what incorporation means.”
See above.
Buddha: “The parts of the BOR incorporated to the Constitution become the Constitution with all the other attendant powers found there. This includes including the Supremacy Clause.”
Once again, the bill of rights are selectively incorporated into the 14th Amendment and then applied to the states. They are not ‘incorporated into the constitution.’
Buddha: “I wouldn’t be so cocksure about the incorporation of the 13th Amendment if I were you either. It may be the law of the land, but it is not incorporated into the Constitution, ergo on it’s own the Supremacy Clause does not apply to it.”
The 13th Amendment is not incorporated into the constitution?? Do you hear yourself? This is not like mispronouncing the word ‘nuclear.’ This is a huge misstatement of logic. Hate to break the news to you, but Article V assures us that all amendments are in fact part and parcel of the original constitution.
And in your musings about the 13th and 18th amendments, you glossed over the original ‘enabling legislation’ within the amendments themselves.
Section 2 of Amendment 13: Congress shall have power to enforce this article by appropriate legislation.
Section 2 of Amendment 18: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Now if congress passed a law under either of those amendments and it conflicted with a state law, can you guess which law, fed or state, would reign ‘supreme?’ Hmm?
Buddha: “The incorporated sections of the BOR are supreme except as limited by the 10th Amendment and its attendant supporting doctrines.”
Care to tell me how the tenth amendment came into play on this question of SCOTUS subject matter jurisdiction; i.e. the equal and independent state grounds doctrine?
Buddha: “Come back when you have a cogent argument that shows you realize what “incorporation” means and what an “exception” is.”
Let me just say your notion of the concept of ‘incorporation’ as used here is truly an exception to the notion used by everyone else when referring to the ‘incorporation doctrine.’
“Incorporated into the constitution” —
Jesus H. Tap Dancing Christ!
Lottakatz,
As an aside which has nothing to do with this thread’s evolving I was struck by your comment “People are taller too …” in that it brought back a memory.
Tex and I were on a road trip out west and stopped at a small town (sorry, I can’t remember where)for lunch. This little town had been a stopover for the Pony Express and they had a marvelous historical set up in their town square complete with the original “station building”. One of the plaques on the building explained that it was not a “miniature rendition” of the old building but the building itself. The doorway was only 5’4″ tall because the adults back then were that much shorter than they are today. The plaque noted that the average adult back then was the same height as the average 12 year old is today. Indeed, the old station building did look like a child’s playhouse.
By the way, I agree with everything else in your post.
“The Supreme Court has held that the 14th Amendment’s Due Process Clause incorporates all of the substantive protections of the 1st, 2nd, 4th, 5th (except for its Grand Jury Clause) and 6th Amendments and the Cruel and Unusual Punishment Clause of the 8th Amendment. This is in addition to their incorporation.”
Bob,
“Your language on this topic lacks clarity; especially as it relates to your obsession with the term ‘incorporation.’”
My only language problem was not being specific enough initially to avoid you acting like an ass.
“Once an amendment is incorporated THEN the supremacy clause applies???
Was the 13th Amendment ‘incorporated?’ How about the 18th Amendment? Was it ‘incorporated?’ NO. Yet those amendments were deemed the supreme law of the land; were they not?”
Since I thought we were talking about the BOR, I assumed you were too. My bad! If you want to discuss other Amendments beyond that scope? That’s another topic. My but you like to move the goal posts when cornered.
“To be clear, the incorporation doctrine relates only to the bill of rights (actually 1-8) since they were originally addressed to further restrict the powers of the fed only. Accordingly, incorporation is not a pre-requisite for ‘an amendment’ becoming part and parcel of ‘the supreme law of the land.’ ”
No. But incorporation is a pre-requisite for an amendment being incorporated into the Constitution.
To be clear, you still don’t understand what incorporation means. The parts of the BOR incorporated to the Constitution /i>become the Constitution with all the other attendant powers found there. This includes including the Supremacy Clause.
The Supreme Court has held that the 14th Amendment’s Due Process Clause incorporates all of the substantive protections of the 1st, 2nd, 4th, 5th (except for its Grand Jury Clause) and 6th Amendments and the Cruel and Unusual Punishment Clause of the 8th Amendment.
I wouldn’t be so cocksure about the incorporation of the 13th Amendment if I were you either. It may be the law of the land, but it is not incorporated into the Constitution, ergo on it’s own the Supremacy Clause does not apply to it. No cases have been prosecuted directly related to the 13th Amendment since 1947 and as recently as 1988, the SCOTUS ruled that the 13th Amendment did not prohibit compulsion of servitude through psychological coercion (United States v. Kozminski, 487 U.S. 931 (1988), later redressed by the Trafficking Victims Protection Act of 2000). So what makes the 13th Amendment the law of the land? Why the the supplemental protections of the 14th Amendment, the 15th Amendment’s additional racial protections for voting rights, and the Trafficking Victims Protection Act of 2000 do. Without these supplemental protections, the 13th Amendment has got fewer teeth than you may realize. Should it be incorporated? You betcha! Is it? No. It may be the law of the land, but it’s not so because of incorporation into the Constitution.
As to the 18th Amendment? Well there was a little bit of enabling legislation that went along with that called the Volstead Act. And nice example you’ve got there, Bob. An amendment and enabling legislation that were effectively killed by the 21st Amendment. The word “nullity” does come to mind.
If you want to nitpick, which evidently you do, I will stipulate that “delineate” would have been a better word choice than “confer”.
“To say that the BOR, to the extent they have been incorporated, are supreme subject to the exception of the equal and independent state grounds doctrine MEANS that the BOR is not “supreme.” Supremacy is not dependent on any outcome other than prevailing over everything.”
The incorporated sections of the BOR are supreme except as limited by the 10th Amendment and its attendant supporting doctrines.
Come back when you have a cogent argument that shows you realize what “incorporation” means and what an “exception” is.
rafflaw:
Yes! yes! Intelligent falling — obviously created by the deity to prevent too many close encounters in the celestial heights.
Mespo,
You do mean the law of Intelligent Falling, don’t you?