Tuesday, July 15, 2008

Jefferson Explains the First Amendment - Kentucky Resolutions

Thomas Jefferson's metaphor "separation of church and state" is often used to justify eliminating any religious actions or even recognition by and governing body. But if one looks at Jefferson's opinions and deeds, one will see that he believed, as did the Founders who wrote the First Amendment, that it provided a limitation only on the Federal Government (and even then, not the kind of limitations that we think we understand today). Consider Jefferson's own words in his draft of the Kentucky Resolutions:

"Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;' and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people..."

I added the boldface to the above quote. Note that Jefferson is clearly saying that limits placed by the First Amendment are on the Federal Government, NOT the state (or by implication, local) governments.

See the Yale Law School Avalon Project, Draft of the Kentucky Resolutions: October - 1798


CrypticLife said...

Are you really interested in repealing the 14th Amendment? You really don't think states should be constrained by the Bill of Rights?

History Matters said...

RE: "Are you really interested in repealing the 14th Amendment?"

NOPE. I'm simply pointing out Jefferson's philosophy on the issue because his metaphor "separation of church and state" (not really his original words, but usually attributed to him) is often used to justify some of the current limitations on religious expression and recognition. By the time we try to apply the phrase to, for example, prayer at a city council meeting, we have to interpolate a couple of times. First we have to think we understand how Jefferson meant the phrase, then we have to wonder what he would have thought of the phrase's application as a limitation on state government, and even then we have to wonder where the limitation on local government comes into play.

Also, there are those who argue that the 14th Amendment means that a person's rights under the U.S. Constitution now apply to under state government. The amendment does not say that limits placed on Congress ("Congress shall make no law respecting an establishment of religion...") are applied to state legislatures. Courts may interpret it that way, although they have not done so consistently. Consider Wikipedia's summary of the 14th Amendment, which I assume is compiled without much political bias:

While it has not been fully implemented, the doctrine of Incorporation has thus been used to ensure, through the unwieldy and unexpected means of the Due Process Clause instead of the Privileges or Immunities Clause, the application of nearly all of the rights [boldface is mine] explicitly enumerated in the Bill of Rights to the states.

Reading the applicable original text of the Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

...it seems clear that the emphasis is on the inherent rights of the human individual. The original First Amendment was intended to limit the Federal Government without placing limits on state governments. So if the 14th Amendment moves the restrictions down to the state level, then shouldn't the limits stop there (as opposed to being carried down further to local governments)?

Mostly that is an interesting argument, but not one that is necessary to the purpose of my blog. In most of the arguments I make (when I am not just placing quotes online), I focus more on how the Founders intended the text to be applied. So if we apply it to the state, then should we not apply it to the state in the way the Founders intended for the Federal government?