It turns out that the status of this part of the Fifth Amendment is still treated by the courts the way the whole Bill of Rights was intended to be by the American founders — as a curb on the federal government. It doesn’t apply to the states. The whole Bill of Rights was originally conceived of in that way. “Congress shall make no law respecting an establishment of religion . . .” is how the First Amendment begins. The italics are ours. It was a restriction on the Congress of the United States, which couldn’t establish a religion. The states, however, could, and some did, establish religions. The last disestablishment of state religion wasn’t until a generation after the First Amendment was ratified.
Things changed with the passage after the Civil War of the 14th Amendment, which came right after the Amendment abolishing slavery and was designed, at least in part, to enforce the end of slavery. The first part of the 14th Amendment says that “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.” It set the stage for a process called “incorporation” by which the courts began applying the Bill of Rights to the states. The courts have done so on a case-by-case — or a right-by-right — basis, and the process has taken time.
http://www.nysun.com/editorials/zimmermans-bill-of-rights/87790/
Fascinating article on a very interesting topic, to wit, in which ways the bill of rights and the Constitution limits state governments.
Things changed with the passage after the Civil War of the 14th Amendment, which came right after the Amendment abolishing slavery and was designed, at least in part, to enforce the end of slavery. The first part of the 14th Amendment says that “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.” It set the stage for a process called “incorporation” by which the courts began applying the Bill of Rights to the states. The courts have done so on a case-by-case — or a right-by-right — basis, and the process has taken time.
http://www.nysun.com/editorials/zimmermans-bill-of-rights/87790/
Fascinating article on a very interesting topic, to wit, in which ways the bill of rights and the Constitution limits state governments.
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