NC GOP proposes law claiming the first amendment doesn’t apply to the states, in order to protect state mixing with religion

Liberals say conservatives are extremists and conservatives say the same thing about liberals. It’s easy enough for anyone to cherry pick rare examples to make the point, but increasingly one side is winning that argument, and it ain’t the GOP.

I’ve argued at least twice that conservatives misunderstand the Constitution and its history. Sometimes willfully and other times accidentally, sometimes broadly and other times narrowly. When it comes to the second amendment I think it’s usually broadly and accidentally, followed by willfully once the facts have been explained.

Many people regardless of ideology have a hard time understanding that the Bill of Rights only applied to the federal government, not the states, from the signing of the Constitution until the 1920s. Some people are so incapable of grasping the concept that they’ll deny it and argue against it, despite over 130 years of history proving it so.

In my personal experience, and that’s worth only what it sounds like, it’s usually conservatives that either don’t get it, or don’t want to get it. That’s ironic, because it’s the conservative view of limited national government that led to this paradigm. The founders were as divided as we are today, with states rights advocates arguing that enumerating broad rights in the Constitution would encourage the federal government to regulate those rights and to use them as a means to control the states.

They weren’t wrong, as we’ve seen in the past 15-20 years, many conservative-dominated states have used big government regulation to all but ban the Constitutional right to abortion. Again ironic, given that this is the ideology that predicted this would happen and feared it.

With the coming of the doctrine of incorporation, the Supreme Court began enforcing the Bill of Rights one amendment at a time against the states beginning in the 1920s, barely 93 nears ago. (Barely as in the Constitution is 226 years old.) There are people still alive today who were born in an America where the states were free to ban guns and any speech they saw fit, which is why many states have a version of the federal first amendment in their own Constitutions.

It wasn’t until 2008 that the Supreme Court “found” that the second amendment applied to the states, and not just the federal government, as it previously had with the first amendment. That court — which some might call activist and accuse of legislating from the bench and inventing rights that don’t exist — overturned 221 years of precedent that said otherwise.

I’ve written as much before, but I bring this all up again because now staunch conservatives in some instances are actually arguing that the Bill of Rights does not apply to the states, in order to protect their intentions that government and Christianity be mixed together.

I buried the lead for a reason: this is happening in North Carolina because Rowan Country is almost certainly going to lose a legal fight to continue having its elected commissioners conduct religious prayers before official government meetings. Forsyth County went down this road and lost, with the courts finding that such behavior violates the first amendment prohibition on the establishment of religion, AKA the “establishment clause”.

Rather than argue again that these prayers don’t violate the establishment clause, North Carolina’s recent Republican majority fresh off cutting unemployment benefits, banning municipal broadband, banning same-sex marriage (again), and trying to make it harder to vote, is going to argue that the incorporation doctrine is wrong — that the first amendment doesn’t apply to the states.

If such a law were enacted and upheld by the federal courts themselves, 2008’s landmark Heller vs. D.C. would be de facto overturned. The court would have to find that states can ban guns, because the second amendment like the first, only applies (as it once truly did) only to the federal government. Moreover, the fourth amendment would no longer apply to state police who could search you and your home at-will, you could be forced to testify against yourself at trial, and mere criticism of the state could be criminalized just as it has been in many foreign countries.

You can’t argue against incorporation for the sake of mixing Christianity — because let’s be honest, these people would never tolerate any other faith becoming the official religion — with government while saying that incorporation applies to everything else.

This is truly an amazingly hypocritical policy to behold. Not five years ago nearly every Republican in the country argued that the Bill of Rights applies against the states so that they could keep their guns, and now many of those same people are arguing that no, the Bill of Rights only applies to the federal government so that they can (symbolically) cling to their bibles. Although it’s much worse than that, because this is about making Christianity the official state religion, giving the state government free reign to persecute non-Christians freely, right up to and including executions for heresy.

* * *

Before heading off, as I eluded to earlier, it’s common for both sides to say that the other side is constantly attacking the Constitution and trying to squash your rights.

Consider these rights which have been under attack from conservatives just in the past four years alone:

* Abortion

* Marriage equality (debatable, but only for about 2-3 more months)

* Birthright citizenship

* Voting

* Freedom from religion/separation of church and state

* Direct election of Senators to the U.S. Senate

And that’s just off the top of my head.

Things are different now. We’re closer than ever to a real life American Taliban, and the North Carolina GOP is at the vanguard of that movement.

Update
In case you’re incredulous that North Carolina would discriminate against non-Christians even if such a thing became law, consider two things. First, ask gays about that. Last I heard same-sex marriage was banned in North Carolina both by state law and in the state Constitution. Second, the North Carolina Constitution still has language that bans anyone who doesn’t believe in God from holding state office.

It’s not enforced because such bans were deemed unconstitutional, but then think about two more things. First, if the state could do something that horrible once, it can do it again. Second, that provision is only unenforceable because of the first amendment. If the NC GOP gets its way with this law, the first amendment goes away and that provision automatically becomes enforceable again with not a finger lifted by anyone.

This law is exactly what the founders of this nation ran away from. It is just about as anti-American as it can be without being simple secession.

Paul Tenny

Paul Tenny

I'm not a journalist but I do it anyway. I cover elections and have interviewed television writers and producers.
Paul Tenny

Latest posts by Paul Tenny (see all)

Leave a Reply