Politics State

Church, state, and original intent by Donald L. Drakeman

By Donald L. Drakeman

This provocative booklet indicates how the U.S. very best courtroom has used constitutional heritage in church-state instances. Donald L. Drakeman describes the ways that the justices have portrayed the Framers' activities in a gentle favoring their very own perspectives approximately how church and nation may be separated. He then marshals the historic proof, resulting in a shocking end concerning the unique that means of the 1st Amendment's institution clause: the framers initially meant the institution clause in simple terms as a prohibition opposed to a unmarried nationwide church. In displaying how traditional interpretations have long past off track, he casts gentle at the shut courting among faith and executive in the United States and brings to lifestyles a desirable parade of church-state constitutional controversies from the Founding period to the current.

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Ibid. David Currie points out, “The Court had no difficulty with the application of the Bill of Rights to the territories, notwithstanding the holding of American Ins. Co. v. S. 511 [1828]) that Article III’s limitations on the nature of federal courts did not apply there. S. ” David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (Chicago: University of Chicago Press, 1985), p. 439, n. 60. Ibid. Ibid. The Historical Construction of Constitutional Reality 35 Court that was creative enough to declare that a corporation was a “person” for Fourteenth Amendment purposes – as the Waite Court decreed in Santa Clara County v.

S. 113 (1877). See the Reynolds brief, in Kurland and Casper, Landmark Briefs, p. 36. ”49 And from this point, the opinion gets very interesting indeed, for it lays the jurisprudential foundation for all subsequent Supreme Court discussions of the religion clauses. Justice Waite begins his analysis by observing that the First Amendment is in fact implicated by Mr. Reynolds’s appeal. Unlike the situation in the Permoli case, where the Court held that the religion clauses do not apply to state laws, this time the law was federal, and, according to Waite, “Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion.

P. 43. ”26 Nineteenth-century Americans could therefore seek no recourse from the state or federal courts via appeals to the First Amendment for protection from laws promulgated by the states. In Mr. Reynolds’s case, the situation was quite different. Utah was not a state at that time, and, in fact, Brigham Young had unsuccessfully petitioned for the Mormon homeland to become the state of Deseret. Utah was instead a territory of the United States, and subject to federal jurisdiction, thus putting Congress in the position usually occupied by state governments: It could freely legislate on marriage and other matters traditionally left to the states, as it did in the Morrill Act.

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