First Amendment and Federalism

It's a Myth that the First Amendment Only Applies to the Federal Government

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Cline, Austin. "First Amendment and Federalism." ThoughtCo, Mar. 24, 2017, thoughtco.com/does-the-first-amendment-apply-to-states-249667. Cline, Austin. (2017, March 24). First Amendment and Federalism. Retrieved from https://www.thoughtco.com/does-the-first-amendment-apply-to-states-249667 Cline, Austin. "First Amendment and Federalism." ThoughtCo. https://www.thoughtco.com/does-the-first-amendment-apply-to-states-249667 (accessed October 21, 2017).
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It's a myth that the First Amendment only applies to the federal government. Many opponents of church/state separation try to defend actions by state and local governments that promote or endorse religion by arguing that the First Amendment doesn't apply to them. These accommodations and theocrats insist that the First Amendment only applies to the Federal Government and therefore all other levels of government are unrestrained, able to mix with religious institutions as much as they wish.

This argument is awful in both its logic and its consequences.

Just to review, here is the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is true that, when it was originally ratified, the First Amendment only restricted the actions of the Federal Government. The same was true of the entire Bill of Rights — all of the amendments applied solely to the government in Washington, D.C., with state and local governments constrained only by their respective state constitutions. The Constitution's guarantees against unreasonable searches and seizures, against cruel and unusual punishments, and against self-incrimination did not apply to actions taken by the states.

Incorporation and the Fourteenth Amendment

Because state governments were free to ignore the American Constitution, they usually did; as a consequence, several states retained established state churches for many years. This changed, however, with the passage of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

That is only the first section, but it is the most relevant one to this issue. First, it establishes just who qualifies as citizens of the United States. Second, it establishes that if someone is a citizen, then that person is protected by all of the privileges and immunities of the United States. This means that they are protected by the Constitution of the United States and that individual states are expressly prohibited from passing any laws which would abridge those constitutional protections.

As a consequence, every citizen of the United States is protected by the "rights and immunities" outlined in the First Amendment and no individual state is permitted to pass laws which would infringe upon those rights and immunities. Yes, the constitutional limitations on governmental powers apply to all levels of government: this is known as "incorporation."

The claim that the First Amendment to the Constitution does not restrict actions taken by state or local governments is nothing less than a lie. Some people may believe that they have legitimate objections to incorporation and/or believe that incorporation should be abandoned, but if so they then should say so and make a case for their position.

Claiming that incorporation doesn't apply or exist is simply dishonest.

Opposing Personal Liberty in the Name of Religion

It is worth noting that anyone who argues for this myth is also required to argue that state governments should be permitted to infringe upon free speech as well. After all, if the religion clause of the First Amendment only applies to the federal government, then the free speech clause must as well — not to mention the clauses on freedom of the press, freedom of assembly, and the right to petition the government.

In fact, anyone making the above argument must be arguing against incorporation, so they must also argue against the rest of the constitutional amendments constraining the actions of state and local governments. This means they must believe that all levels of government below the federal government have the authority to:

  • Regulate or ban gun ownership
  • Quarter troops in people's houses
  • Search homes and seize property at will, without warrants or court oversight
  • Ignore due process, engage in double jeopardy, use self-incrimination
  • Dispense with jury trials and any rights for the accused
  • Set bail to any amount
  • Punish in any way, no matter how cruel and unusual

This is provided, of course, that the state constitutions don't restrict government authority in such matters — but most state constitutions are easier to amend, so people defending the above myth would accept the right of a state to change its constitution to give state and local government authority in the above areas. But how many of them would really be willing to accept that position, and how many would reject it and try to find another way to rationalize their self-contradictions?