State vs Fed Constitution and 10C

[Rhaedas]

This could probably go into any of the various Moore threads, but it's sort of a topic of its own...

The only argument I've seen that may have some legality to it in the big Moore 10C situation is one where its stated that the Federal Gov't doesn't have jurisdiction over what each state does, and in the case of Alabama, there is no separation of church and state implied in their constitution, so there's no infraction.

Now for one I'd say that Alabama and other states should have such a clause, for the same reasons as the Constitution does. But given the current conditions, is Moore legally not at fault then? I in no way am saying he's right, for we all know the agenda he's pushing, but is the Federal gov't overstepping its boundaries, as I've read a few people suggest on other boards?

[Jewel]

I was under the impression that when it comes to constitutional rights the US Constitution trumps the individual state constitutions.

[Rhaedas]

Little research answered my own question...the statement that Alabama doesn't have its own religion establishment clause is, as I should have guessed, not true at all.

SECTION 3

Religious freedom.

That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles.

So while the question of who should be enforcing the law may still be a valid one, state and fed laws read the same, and Moore is in violation.

[Stephen Maturin]

Originally posted by Rhaedas
I in no way am saying he's right, for we all know the agenda he's pushing, but is the Federal gov't overstepping its boundaries, as I've read a few people suggest on other boards?

Nah. This one isn't even debatable. The governing principles work something like this:

- Federal law, including the U.S. Constitution, is the "supreme Law of the Land." U.S. Const. art. VI, cl. 2. (http://www.law.emory.edu/FEDERAL/usconst/art-6.html) Any federal law trumps any state law, including a state constitutional provision.

- The Establishment Clause applies to the states by operation of the Fourteenth Amendment. Even Moore didn't dispute that.

- Obviously, the First and Fourteenth Amendments are part of the U.S. Constitution.

- Federal courts have jurisdiction over cases "arising under this Constitution [or] the Laws of the United States * * *." U.S. Const. art. III, sec. 2, cl. 1. (http://www.law.emory.edu/FEDERAL/usconst/art-3.html#sec-1)

- The claims against Moore arise under the First Amendment and a federal statute, namely 42 U.S.C. sec. 1983.

So, the federal judge acted well within his authority in this case. It's hard to imagine how Moore's lawyers could make this argument without laughing.

[The Other Michael]

nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry

Could a case then be made that any state tax exemptions] for churches are unconstitutional (by the state constitution, not the federal one) as by exempting tax collection they are in essence increasing the tax burden on other citizens for the benefit of a religious organization?

thanks,
Michael

[RufusAtticus]

Originally posted by The Other Michael
Could a case then be made that any state tax exemptions] for churches are unconstitutional (by the state constitution, not the federal one) as by exempting tax collection they are in essence increasing the tax burden on other citizens for the benefit of a religious organization?

Remember this is Alabama we're talking about. They effectively exempt rich people from income taxes, but not poor people.

[Shake]

The point was made on a link in another thread that no one, not even a state judge like Moore can expect to win when fighting a lawful federal order. He, like you or I, cannot simply pick and choose which laws/rulings we are to obey. There is a process for getting laws changed and for changing the people who make the laws: it's called voting.

This article in this link also stated that if this issue were so big for Moore that he was conflicted in his state position that he should resign his post and take up the matter as a private citizen (as is his Constitutional right). That I would not have a problem with, aside from the fact that I disagree with his opinion on this matter. He does not have the right however to use his position to promote religion.

The article in question is here (http://www.beliefnet.com/frameset.asp?pageLoc=/story/131/story_13152_1.html&storyID=13152&boardID=62956) on Beliefnet, where there is also a poll and links on that page to other related stories, such as this (http://www.beliefnet.com/frameset.asp?pageLoc=/story/131/story_13133_1.html&storyID=13133&boardID=62842).

[ohwilleke]

I believe MLK, Jr. himself made the caselaw (by losing) that you cannot challenge the correctness of a court order as a grounds for disobeying it.

[melinie007]

Any federal law trumps any state law,
Hope I'm not being pedantic... but not true. True if you meant any validly made federal law... but

US is a federal system of goverment that reserves power to the states. The federal goverment only has power to legislate under the enumerated heads of power. Still, there are many areas that are exclusively for the states. The 10th amendment makes this clear -"[t]he 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

Art IV, to which you linked, doesn't say what it seems to :- it says 'made under the authority of the United States' - ie pursuant to 10th amendment and the enumerated lists of power.

The real effect of this provision is to make it clear that the US constitution is the law of the land - state consitituions can't conflict with it or remove powers from it (e.g have a constitution giving them power to exclusively make international treaties, when this is given in the constit to the federal gov)

I apologise if this is not what you meant... I am a bit of a constitutional federalism nazi ...

But you are right... the affect of Art IV is to say very clearly that state constit provisions mean nil if they conflict with the US constit...

[ScumDog]

I believe that Article VI says it:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

By the way, how exactly does the 14th Amendment make the Constitution apply to the states, Stephen (or anyone else)?

Here's a quote someone posted in another forum to say that Jefferson was not an absolutist, and therefore can be said that he meant for the Establishemtn clause to apply to only the federal government (I think he meant national, since federal means both national and state gov):
In addition, even if the "wall of separation" were meant to be applied to the states, what exactly did Jefferson mean? The Court suggests the phrase is absolute. According to the Court, "that wall must be kept high and impregnable. We could not approve of the slightest breach." Everson, 330 U.S. at 18. Jefferson's actions as President of the United States are important guidelines in understanding what he meant by the "wall of separation." In 1803, one year after the Danbury letter, Jefferson made a treaty with the Kaskaskia Indians, wherein he pledged money to build them a Roman Catholic Church and to support their priests — all from federal funds. Jefferson apparently saw no conflict between asking Congress to implement the treaty's provisions by appropriating funds, and the prohibition that "Congress shall make no law respecting an establishment of religion . . ." In addition, Jefferson signed three extensions of "An act regulating the grants of land appropriated for Military Services, and for the Society of the United Brethren for propagating the Gospel among the Heathen." This act granted free of charge titles to sections of land to the United Brethren. In addition to holding the land in trust for Indians who were already Christians, the United Brethren used resources derived from cultivating and leasing the land to send out missionaries to proselyte among the non-Christian Indians. Once again, had Jefferson been an absolutist, as the Everson Court suggests, he would have vetoed not one, but all three extensions of this act. Thus, the Danbury letter is significant because when taken out of context, it provides the foundation for an absolute separation of church and state. Not only was Jefferson referring to the federal government, but his activities while in office also indicate that he was not an absolutist.
From http://www.churchstatelaw.com/historicalmaterials/8_8_5.asp

[Stephen Maturin]

Originally posted by melinie007
Hope I'm not being pedantic... but not true. True if you meant any validly made federal law... but

Nah, you're not being pedantic at all, mel. You're quite correct, in fact; an ultra vires federal law doesn't trump anything. Given the expansive interpretations that the Supreme Court has given to Congress' enumerated powers, though, finding a truly ultra vires federal law isn't easy, although Wild Bill Rehnquist is doing his best to change that.

Originally posted by ScumDog
By the way, how exactly does the 14th Amendment make the Constitution apply to the states, Stephen (or anyone else)?

The Supreme Court has applied Bill of Rights provisions to the states on an item-by-item basis through interpretation of the word "liberty" in the Due Process Clause of the Fourteenth Amendment. That's come to be know as "selective incorporation." There's a short but decent description of the process here (http://www.nra-ila.org/Articles.asp?FormMode=Detail&ID=23) (on the NRA's website, of all places). Bill of Rights provisions that haven't been applied to the states yet include the Second Amendment (bearing arms or arming bears or something like that), the Third Amendment (quartering soldiers in people's homes), the grand jury requirement of the Fifth Amendment and the Seventh Amendment (right to jury trial in civil cases).

There's long been an argument floating around that the Establishment Clause shouldn't be considered binding on the states through the Due Process Clause because the EC doesn't protect an individual liberty. You'll find a reasonably comprehensive discussion of that argument here (http://www.fed-soc.org/Publications/practicegroupnewsletters/religious%20liberties/rl010304.htm).

Personally, I don't think much of the argument. Everyone agrees that the Free Exercise Clause protects an individual liberty and ought to be binding on the states. It's tough to see how you'd protect individual religious freedom from state government intrusion without also limiting states' ability to "establish" religions. So, as I see it, the EC is a necessary adjunct to the FEC and therefore both are rightly properly incorporated.

The debate is pretty much entirely academic, though, since the Supreme Court has been applying the EC to state action for well over fifty years now.

[StrictSeparationist]

Originally posted by Stephen Maturin
The Supreme Court has applied Bill of Rights provisions to the states on an item-by-item basis through interpretation of the word "liberty" in the Due Process Clause of the Fourteenth Amendment. That's come to be know as "selective incorporation." There's a short but decent description of the process here (http://www.nra-ila.org/Articles.asp?FormMode=Detail&ID=23) (on the NRA's website, of all places). Bill of Rights provisions that haven't been applied to the states yet include the Second Amendment (bearing arms or arming bears or something like that), the Third Amendment (quartering soldiers in people's homes), the grand jury requirement of the Fifth Amendment and the Seventh Amendment (right to jury trial in civil cases).

Unless I'm mistaken, the Eigth Amendment prohibition of excessive bail or fines has also never been incorporated.

[Stephen Maturin]

Originally posted by StrictSeparationist
Unless I'm mistaken, the Eigth Amendment prohibition of excessive bail or fines has also never been incorporated.

Yeah, I'm pretty sure that's still correct. I actually had an asbestos manufacturer throw that one at me in a CIVIL CASE sometime during the mid-90s. The misconduct of the manufacturer in question, which shall remain nameless(1), was so appalling and egregious that the company was getting slapped with punitive damages judgments by jury after jury all over the country. The company contented that any more such judgments would violate the Due Process, Double Jeopardy and - you guessed it - Excessive Fines Clauses. There weren't any Supreme Court cases incorporating the excessive bail/fines prohibition then, and AFAIK there aren't any such cases now.

(1)*cough* Owens-Corning *cough*

[ohwilleke]

I think I recall one third amendment case involving a state national guard in the South, but otherwise I'd agree on the extent of incorporation.

Also, while we're talking trivia, you might be surprised to know that there is no constitutional right to an appeal in a criminal or civil action. You have a right to a lawyer if the government gives you an appeal, but no right to the appeal itself.

[RufusAtticus]

Am I right to assume that these things haven't been incorporated because they've never been violated by states?

[ohwilleke]

Originally posted by RufusAtticus
Am I right to assume that these things haven't been incorporated because they've never been violated by states?

No. Most states indict without grand juries, and at least one, Louisanna does not have a right to a civil jury trial. The Supreme Court has decided on a case by case basis that particular parts of the Bill of Rights aren't necessary to due process or equal protection.