Supreme Court Ancient History

johnhall johnhall@isomedia.com
Wed, 5 Mar 2003 18:40:16 -0800


> j> An early SC decision in the 19th C stated explicitly that a State
could
> j> re-enact the Inquisition if it so chose without violating the 1st.
> 
> Ok, see, this is where something else would be nice here.  This is the
> only thing remotely close (date wise) 

When I said early 19C I was talking (date wise) about, say, 1823.  The
brief you found is by a group that was founded in 1997.

FindLaw takes the SC decisions back to 1893, far to late for the
purpose.

> _something else_ (such as they were making an analogy) or that this
> if, it was said, is still good law.

Of _course_ it is no longer good law.  The incorporation doctrine
rendered the idea obsolete.

Since I can't remember the exact case (and it is only useful for
historians, really) I simply fall back on the words of the 1st.
"_Congress_ shall make no law ...".  Prior to the incorporation doctrine
the 1st was applied to the Federal Government and not to the states.

> Here's my guess:  Either you're exaggerating, misremembering or
> something has gotten lost (and likely overruled) in the ether.

_Definitely over-ruled_.  I don't remember exactly when the
incorporation principle was enunciated.

> Also, a point to remember is that the 14th Amendment was ratified in
> 1868, and it took Court-granted pronouncements to apply given
> amendments to the States (Amendments were previously only applied
> federally).  The Establishment Clause (which is _my_ guess in regards
> to your Inquisition statement) was only made applicable to the States
> in 1947,  so the 1800's case giving a State the right to invoke the
> Inquisition is suspect.  

Why suspect?  It only requires the court in the 1800s to _refuse_ to
apply the establishment clause to a state, something you note didn't
happen for another 100 years or so.

> Fewer than 12 First Amendment cases come before the court between 1791

> and 1889, according to First Amendment scholar Michael Gibson. This is

> due to the prevailing view among federal judges that
> the Bill of Rights does not apply to state actions."
> http://www.freedomforum.org/templates/document.asp?documentID=3961
> 
> Again, as always, additional bits would be nice.

I turned up this footnote in Everson about Establishment cases prior to
the 14th Amendment incorporation.

Terrett v. Taylor, 9 Cranch 43; Watson v. Jones, 13 Wall. 679; Davis v.
Beason, 133 U.S. 333; cf. Reynolds v. United States, supra, 162; Reuben
Quick Bear v. Leupp, 210 U.S. 50.

I don't really understand how to read those citations, and I haven't
found a good source for decisions that old.  

I did find a takings case from 1833 dismissed because the BoR couldn't
be applied to the states.