By Ian Millhiser on Apr 3, 2013 at 10:32 am
The Constitution “does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional” according to a resolution sponsored by North Carolina House Majority Leader Edgar Starnes (R) and ten of his fellow Republicans — a statement that puts them at odds with over 200 years of constitutional law. In light of this novel reading of the Constitution, Starnes and his allies also claim that North Carolina is free to ignore the Constitution’s ban on government endorsement of religion:
This resolution is nothing less than an effort to repudiate the result of the Civil War. As the resolution correctly notes, the First Amendment merely provides that “Congress shall make no law respecting an establishment of religion,” and, indeed, the Bill of Rights was originally understood to only place limits on the federal government. For the earliest years of the Republic, the Bill of Rights were not really “rights” at all, but were instead guidelines on which powers belonged to central authorities and which ones remained exclusively in the hands of state lawmakers.
SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.
SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.
In 1868, however the Fourteenth Amendment was ratified for the express purpose of changing this balance of power. While the early Constitution envisioned “rights” as little more than a battle between central and local government, the Fourteenth Amendment ushered in a more modern understanding. Under this amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” nor may any state “deprive any person of life, liberty, or property, without due process of law.” The Fourteenth Amendment completely transformed the nature of the American Republic, from one where liberties were generally protected — if at all — by tensions between competing governments to one which recognized that there are certain liberties that cannot be abridged by any government.
There is some academic debate about whether the architects of the Fourteenth Amendment intended the freedoms protected by the Bill of Rights to be applied to the states because these liberties are part of the “privileges or immunities” of U.S. citizens, or because they are liberties that cannot be denied under the Constitution’s “due process” guarantees. Regardless of the correct answer to this academic question, however, one of the most important judicial projects of the Twentieth Century was a series of Supreme Court decisions applying most of the Bill of Rights’ limits to state governments. This project completed the work the framers of the Fourteenth Amendment began nearly 150 year ago — reconstructing America as a nation that recognizes certain civil rights which no lawmaker is allowed to trample. The right to be free from government endorsements of religious is one of these civil rights.
So when Starnes and his colleagues lash out against this one freedom, they are not simply lashing out against some court decisions that they disagree with. They are rejecting the most transformative moment in American constitutional history and denying that their side lost the Civil War.