As you may have heard by now, a joint resolution has been introduced into the North Carolina General Assembly that proclaims religious liberty, especially as it relates to a court case coming out of Rowan County.
The resolution goes through a number of points, which all deserve some explanation; first, the resolution begins:
Whereas, the Establishment Clause of the First Amendment of the Constitution of the United States reads:"…Congress shall make no law respecting an Establishment of Religion, or prohibiting the free exercise thereof;…" and
Whereas, this prohibition does not apply to states, municipalities, or schools; and
As interpreted by a variety of justices on the U.S. Supreme Court, there is a prohibition against the states and its subgovernments through the first section of the 14th Amendment:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis added]
Based on the idea of “incorporation,” the U.S. Supreme Court has used the 14th Amendment to hold the States accountable to several of the fundamental freedoms found in the Bill of Rights, including “respecting an Establishment of Religion.”
Whereas, in recent times, the federal judiciary has incorporated states, municipalities, and schools into the Establishment Clause prohibitions on Congress; and
Here the resolution’s proponents are correct: the Supreme Court has incorporated the “Establishment Clause” especially when it comes to state governments preferring one religion over another. Lower courts have said that local governments, including Forsyth County, can’t recite prayers that give specific preference in a sectarian prayer.
Whereas, the Tenth Amendment to the Constitution of the United States reads: "The 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."; and
Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and
Most “states’ rights” advocates draw their constitutional prowess from the 10th Amendment, contending that federal government, especially the legislature, is one of limited powers and that any power not given to the federal government is kept by the states and the people.
Because of their belief in a “limited” federal government, states’ rights advocates argue that state governments have all the remaining governing power, and some go as far as to believe that the states delegated power to the federal government to operate.
This would be akin to saying that the preamble of the U.S. Constitution begins with “We the States” instead of “We the People,” and the Supreme Court has held this state-centric idea as wrong.
From an 1816 case of Martin v. Hunter’s Lessee, the Supreme Court held that the “constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by "the people of the United States."
The U.S. Supreme Court went on to say that the U.S. “constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions, for the powers of the states depend upon their own constitutions…”
Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional;
Well, there is this pesky part of Article III of the U.S. Constitution: “The judicial Power of the United States shall be vested in one supreme Court…”
And what is this “judicial Power?” Writing in Federalist 78, Alexander Hamilton described the “interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to [judges] to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”
Therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and
Until the nation amends the U.S. Constitution to reverse Marbury v. Madison’s declaration that it “is emphatically the province and duty of the Judicial Department to say what the law is,” then 10th Amendment advocates are going to have a hard time making the case that the states determine what is constitutional and what isn’t.
Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion; and
Here’s where states’ rights advocates believe that states are supreme to the federal government, with the mistaken notion that the states created the federal government and gave it power.
For many states’ rights advocates, the constitutional theory of interposition and nullification means that the states have the power not to recognize federal decisions and laws within its borders.
There’s a lot of judicial precedent lined against this idea, and while all states are sovereign (meaning they hold governmental power), the idea that states can “independently determine” whether they choose to abide by or refuse to enforce has been rejected by no less than the Civil War, along with a host of court cases.
For example, the 1795 case of United States v. Peters held that if “the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”
From Cohens v. Virginia in 1821, which looked at the federal constitution’s “supremacy clause,” the court’s majority held that “the general government, though limited as to its objects, is supreme ... This principle is a part of the Constitution, and if there be any who deny its necessity, none can deny its authority.”
So while the resolutions proponents are firm in their beliefs, they simply harken back to arguments tried in the 1830s or the 1950s when it came to issues of race. And their arguments were soundly rejected.
As noted, the proposed “Rowan County, North Carolina, Defense of Religion Act of 2013” resolution was filed at the beginning of April—April 1st, to be precise.
I’ll let the date speak for itself.