There is not a single thing I do not love about HJR 494, from the bravery of humble Rowan County to the the legislature's stinging rejection of the federal judiciary power. This is my favorite legislative proposal since the one last session that would permit local authorities to arrest federal food inspectors conducting safety inspections. It is perfect and beautiful, like a rare pearl.
The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." As a textual matter, this Clause probably prohibits Congress from establishing a national religion. Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress' power under the Necessary and Proper Clause.
Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from "abridging [particular] freedom[s]." This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. History also supports this understanding: At the founding, at least six States had established religions. Nor has this federalism point escaped the notice of Members of this Court.
Quite simply, the Establishment Clause is best understood as a federalism provision — it protects state establishments from federal interference but does not protect any individual right.
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"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis
"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko
I grew up literally within a stone's throw of Rowan County. Seriously. When water levels were low enough, you could throw a stone across the Yadkin River and have it land in Rowan County.
I have to say that this surprises me not one bit. Saddens, yes. Surprises, no.
Cue the elated Facebook messages about how "We're finally standing up to the evil and oppressive Black Man in the White House Feds who're trying to take away our God-given freedoms" in 3 ... 2 ... 1 ...
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“The greatest way to live with honor in this world is to be what we pretend to be.”
this is why I prefer libertarians working with the sane conservative and not get involved in that liberaltarian/left-libertarian shit
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"There is one good thing about Marx: he was not a Keynesian."(Murray N.Rothbard)
"Money is the barometer of a society’s virtue."(Ayn Rand)
"The problem with socialism is that eventually you run out of other people's money"(Margaret Thatcher)
Stubbornly clinging to NC's Democratic heritage only was going to last for so long. I knew that when the GOP got control it was going to unleash a backlog of pent up stupidity, but even I'm surprised by how bad some of it is.
But let me help you out (don't feel like finding links for all these):
This year, the North Carolina Republicans have:
-Sponsored a bill to claim that NC doesn't have to follow the 1st Amendment establishment clause
-Proposed a bill to add a two-year waiting period to divorce, with required courses and marriage counseling
-Filed a bill that baldly suppresses the college vote, and ends weekend voting
-Gov. Pat McCrory has proposed to privatize Medicaid
-Proposed a bill that would no longer require charter schools to conduct background checks on teachers, or require even half of them to be certified
-Suggested that we get rid of one or two UNC campuses, despite the university system being one of the best things about the state
-Voted to repeal the Racial Justice Act, which is meant to ensure the death penalty is applied fairly by allowing appeals on the basis of racial bias
-Suggested that we get rid of one or two UNC campuses, despite the university system being one of the best things about the state
Holy shooting yourself in the foot, Batman!
That it has some of the best colleges and universities in the country [despite, ironically, having some of the worst primary schools] is one of North Carolina's biggest selling points.
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“The greatest way to live with honor in this world is to be what we pretend to be.”
That it has some of the best colleges and universities in the country [despite, ironically, having some of the worst primary schools] is one of North Carolina's biggest selling points.
Did you dummies even read the informative link that AML posted?
North Carolina's biggest selling points have nothing to do with freedom-destroying parasitical institutions like colleges and universities. North Carolina's biggest selling points are the best damn asset-forfeiture laws in the land, legal open carry, and low wine taxes.
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"Trans Am Jesus" is "what hanged me"
The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." As a textual matter, this Clause probably prohibits Congress from establishing a national religion. Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress' power under the Necessary and Proper Clause.
Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from "abridging [particular] freedom[s]." This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. History also supports this understanding: At the founding, at least six States had established religions. Nor has this federalism point escaped the notice of Members of this Court.
Quite simply, the Establishment Clause is best understood as a federalism provision — it protects state establishments from federal interference but does not protect any individual right.
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Cēterum cēnseō factiōnem Rēpūblicānam dēlendam esse īgnī ferrōque.
“All for ourselves, and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind.” -Adam Smith
I see a problem. The Bill of Rights has been incorporated against state actions via the Due Process Clause of the 14th Amendment. Taken in that context, the 1st Amendment prevents both Congress AND any state from making laws infringing free speech, a free press, creating any law establishing a religion, infringing the free exercise thereof, etc. Knowing that, the bill is clearly unconstitutional.
Also, Newdow was dismissed for lack of standing, as he was the non-custodial parent, and standing isn't at issue here.
Quote:
Originally Posted by Stephen Maturin
I don't see the problem. After all,
Quote:
The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." As a textual matter, this Clause probably prohibits Congress from establishing a national religion. Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress' power under the Necessary and Proper Clause.
Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from "abridging [particular] freedom[s]." This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. History also supports this understanding: At the founding, at least six States had established religions. Nor has this federalism point escaped the notice of Members of this Court.
Quite simply, the Establishment Clause is best understood as a federalism provision — it protects state establishments from federal interference but does not protect any individual right.
I see a problem. The Bill of Rights has been incorporated against state actions via the Due Process Clause of the 14th Amendment.
And how exactly does any state declaring itself Christian violate anyone's right to due process? Hmmmm?
Quote:
Taken in that context, the 1st Amendment prevents both Congress AND any state from making laws infringing free speech, a free press, creating any law establishing a religion, infringing the free exercise thereof, etc.
The problem being that we cannot do that and be mindful of the letter of the relevant constitutional provisions. You will eventually find yourself at the threshold of this realization if, rather than speaking in vague, superficially constitutional generalities, you actually attempt to justify application of the establishment clause against the states by way of the 14A incorporation clause.
Calm down there, Cochise. I'm on your side. Sarcasm doesn't always come through cleanly over t3h iNtarb00bsz. My bad for the misunderstanding.
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Originally Posted by randomousity
The Bill of Rights has been incorporated against state actions via the Due Process Clause of the 14th Amendment.
In large part, yes, but not in toto. For example, if you want a constitutional right to trial by jury in your civil case, you'll have to find it in your state constitution on accounta the first part of the Seventh Amendment isn't incorporated. Unless you live in the Second Circuit, the state can quarter all the goddamn soldiers it wants in your house, consent be damned. Last time I checked, the Excessive Fines Clause of the Eighth Amendment hadn't been incorporated either.
Quote:
Originally Posted by randomousity
Taken in that context, the 1st Amendment prevents both Congress AND any state from making laws infringing free speech, a free press, creating any law establishing a religion, infringing the free exercise thereof, etc. Knowing that, the bill is clearly unconstitutional.
You betcha. As a matter matter of precedent, that's wholly correct.
However, much as I enjoy loling at Clarence Thomas, the man's no idiot. Supreme Court precedent incorporating the Establishment Clause - the First Amendment provision at issue here - takes the form of pure pontification. So far as I'm aware, the Court has never analyzed the EC in accordance with standard incorporation principles and explained why the EC binds state governments. See, e.g., Everson v. Board of Education, 330 U.S. 1, 8 (1947).
Thomas makes a decent case that the EC isn't that great a candidate for incorporation under standard individual rights-based incorporation analysis. I think a better case can be made for incorporation but the issue isn't an analytical no-brainer by any means.
It's all academic anyhoo, seeing as how Thomas is a minority of one on the EC incorporation issue. Even Scalia is all like, "Dude, wtf" on that account. EC incorporation is a done deal, and it won't be changing any time soon.
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Originally Posted by randomousity
Also, Newdow was dismissed for lack of standing, as he was the non-custodial parent, and standing isn't at issue here.
Well fuck me up the shitter with a Studebaker!
Looks like we got us another one of those failure to communicate thingies. I wasn't citing Thomas' concurrence in Newdow as authority for the proposition that the EC is really and for true inapplicable to state and local governments. I just wanted a quote summarizing Thomas' view. I probably could have just as easily used something from his concurrence in Zelman v. Simmons-Harris or his dissent from cert. denial in Utah Highway Patrol Association v. American Atheists.
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"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis
"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko
I see a problem. The Bill of Rights has been incorporated against state actions via the Due Process Clause of the 14th Amendment.
And how exactly does any state declaring itself Christian violate anyone's right to due process? Hmmmm?
This is how:
Quote:
The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U.S. 105, commands that a state "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."
Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947).
and
Quote:
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
Id. at 15.
Quote:
Quote:
Taken in that context, the 1st Amendment prevents both Congress AND any state from making laws infringing free speech, a free press, creating any law establishing a religion, infringing the free exercise thereof, etc.
The problem being that we cannot do that and be mindful of the letter of the relevant constitutional provisions. You will eventually find yourself at the threshold of this realization if, rather than speaking in vague, superficially constitutional generalities, you actually attempt to justify application of the establishment clause against the states by way of the 14A incorporation clause.
I don't need to justify it, as the Supreme Court has already done so for me. You can dislike it until you're blue in the face, but it remains the law of the land. Also, where might one find this "incorporation clause" of which you speak?
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Originally Posted by Stephen Maturin
Quote:
Originally Posted by Stephen Maturin
I don't see the problem.
Quote:
Originally Posted by randomousity
I see a problem.
Calm down there, Cochise. I'm on your side. Sarcasm doesn't always come through cleanly over t3h iNtarb00bsz. My bad for the misunderstanding.
Quote:
Originally Posted by randomousity
The Bill of Rights has been incorporated against state actions via the Due Process Clause of the 14th Amendment.
In large part, yes, but not in toto. For example, if you want a constitutional right to trial by jury in your civil case, you'll have to find it in your state constitution on accounta the first part of the Seventh Amendment isn't incorporated. Unless you live in the Second Circuit, the state can quarter all the goddamn soldiers it wants in your house, consent be damned. Last time I checked, the Excessive Fines Clause of the Eighth Amendment hadn't been incorporated either.
Well, ok, I guess I made an overly-broad generalization, which, while not literally true, was true for the context in which I was writing, which was good enough for me.
Quote:
Quote:
Originally Posted by randomousity
Taken in that context, the 1st Amendment prevents both Congress AND any state from making laws infringing free speech, a free press, creating any law establishing a religion, infringing the free exercise thereof, etc. Knowing that, the bill is clearly unconstitutional.
You betcha. As a matter matter of precedent, that's wholly correct.
Also, where might one find this "incorporation clause" of which you speak?
I'm p. sure the absence of such a clause was, in large part, the point of yguy's comment.
In any event, welcome to
__________________
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis D. Brandeis
"Psychos do not explode when sunlight hits them, I don't give a fuck how crazy they are." ~ S. Gecko
I see a problem. The Bill of Rights has been incorporated against state actions via the Due Process Clause of the 14th Amendment.
And how exactly does any state declaring itself Christian violate anyone's right to due process? Hmmmm?
This is how:
Quote:
The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U.S. 105, commands that a state "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."
Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947).
and
Quote:
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
Id. at 15.
First of all, not a syllable of this is responsive, since due process is not mentioned or implied in any of it. Second, none of it provides even the merest wisp of a clue as to how the EC - which is unique among the particulars cited in 1A in that it is a restriction on Congress rather than a privilege, immunity or any other sort of individual right - can be applied against the states by way of anything in the incorporation clause.
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I don't need to justify it, as the Supreme Court has already done so for me.
Well I suppose you could say that in the same sense that a dictator can justify any absurdity merely by declaring it law, without any need to support that declaration with facts or reasoning.
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You can dislike it until you're blue in the face, but it remains the law of the land.
I invite you to review the supremacy clause, which mentions three specific instruments which do or may constitute the supreme law of the land, and note that court decisions - even correct ones - are not among them.
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Also, where might one find this "incorporation clause" of which you speak?
Second sentence of 14A.
Quote:
Originally Posted by Stephen Maturin
I'm p. sure the absence of such a clause was, in large part, the point of yguy's comment.
No, I call it that because it was intended by the author to nullify Barron v Baltimore.