Wednesday, September 29, 2010

Originalism and Events in Dearborn

At first this appears to be a victory — Attorney: Acquitted Christian missionaries plan to sue Dearborn over arrests at Arab festival. "They spent a night in jail for doing nothing but attending an Arab festival and daring to discuss their faith," said Robert Muise of Thomas More Law Center. (Click on the link for a chilling video of the arrest of a convert from Islam for talking to Muslims.)

But what if we look at the events in light of Originalism, i.e. viewing the United States Constitution under "the principle of interpretation that tries to find out the original meaning or intent and not impose new interpretations foreign to the original intention of the authors"? The First Amendment to the United States Constitution only bound the Federal Government. Thus, it was not until the 1818 Constitution of the State of Connecticut that Congregationalism was disestablished as the state religion of the "Constitution State."

Perhaps the local authorities in Dearborn should be free to give Muslims protection from proselytization at their festivals. The local authorities in Dearborn certainly had no say in the immigration policies that made their city home to so many Muslims. Perhaps local authorities in Manhattan and Tennessee should likewise be free to decide whether or not mosques go up in their communities.

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Blogger Baron Korf said...

They could offer those protections, but there are none on the books now. I think it is safe to fall back on the Constitution if the State itself has no relevant law on the books.

11:25 PM  
Blogger Der Wolfanwalt said...

I think it is also worthwhile to point out that since the post-Civil War amendments were ratified (regardless of whether, like me, you regret their wording, nor not), the jurisprudence surrounding the 1st Amendment does tend to extend to the states.

Immigration, conversely, is one of those faculties that arguably should be handled corporately - i.e., if we have made the decision to band together as states for purposes of trade and protection, then I can see an argument for why immigration should be administered by the whole rather than the parts.

12:28 AM  
Blogger Zach said...

As your other lupine commenter noted, this is the work of the 14th Amendment. (see Sections 1 and 5).

Through it, the Supreme Court has been finding that the Bill of Rights freedoms apply as rights of the individual citizen against the States, and not simply as limits on Federal action. This has been done via use of the "privileges and immunities", "due process", and "equal protection" clauses.

So, if you're making an "original intent" argument, you need to keep in mind the intent of the framers of the 14th, not just the 1st-10th. Although I do wish more Americans understood that point about the Bill of Rights originally being a limit on the Federal government's power.


7:24 PM  
Blogger Der Wolfanwalt said...

I'm tempted to go the route of bemoaning the existence of the 14th Amendment, but I'm torn. I understand what the primary goal of the maneuver was...I just find it to be poorly executed in practice.

7:32 PM  
Blogger The Western Confucian said...

This comment has been removed by the author.

10:00 PM  
Blogger The Western Confucian said...

You Germanophiles make good arguments. Yes, realistically, it is propbaly best to stick to the Constitution at this point, even if the Articles were better.

That said, I'll go on record as saying that I wish the War Between the States had never been fought and those amendments never forced on the country.

I imagine that the peculiar institution would have withered away in an independent C.S.A., and that the two races would have come to a more amicable resolution. Heck, they might have even had a black president before 2008, and one with roots in the country.

10:02 PM  

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