[elwoodblues]

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It is. The First Amendment says "Congress shall make no law", not that no one else can. When this country was founded many of the states had state relgions. The primary purpose of keeping the federal government out of religion was to keep any of the different branches of protestantism from gaining supremacy. Some states even required you to be members of that state's relgion in order to vote!

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i used to be a slight history buff (a few history courses in college w/ some credits after i had enough for my double major and AP US/ AP European history in high school) but i had no idea about this.

how did we get the "separation" interpretation we have today?

was it struck down by some interpretive supreme court (ruling that "congress shall make no law" implies that all govts federal or otherwise shall make no law)?

interesting stuff...if you could take a few moments to expound upon it i'd bea ppreciative.

thanks,
Barron

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Very early in Constitutional interpretation the word "Congress" in the first amendment was interpreted to mean "Federal Government."

After the passage of the 14th Amendment, courts began interpreting the Due Process clause (i.e. that no person shall be denied by the states "liberty" without due process of law) to incorporate some of the protections of the Bill of Rights. This process began in the 20's (if I remember correctly.)
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There is heated debate about whether the 14th Amendment's Due Process clause should apply the liberty protections of the Bill of Rights to the States. Personally, I think the best argument against the liberty interests described in the 14th Amendment being inclusive of the Bill of Rights is found not in original intent/meaning, but in the text of the document itself.

The argument goes something like this:
*None of the text of the Constitution should be read to be unnecessary (i.e. all of the clauses should have independent meaning/value.)
*The same language used in different parts of the Constitution should mean the same thing.
*The Due Process Clauses of the 5th Amendment (applied to the federal government) and the 14th have the same language and should, therefore, have the same meaning.
*If the "liberty" interests in the 5th Amendment included, for example, the right to Free Speech then the Free Speech clause of the 1st Amendment would be unnecessary. Thus, "liberty" in the 5th Amendment cannot include the right to free speech (as it is already protected elsewhere.)
*Because the "liberty" clause of the 5th Amendment does not include Free Speech and the 14th Amendment liberty clause has the same meaning as the 5th Amendment liberty clause, then the 14th Amendment liberty clause cannot include the right to free speech.


I think the courts would have been on stronger ground had they read the Priviliges and Immunities clause to apply the Bill of Rights to the States. The P&I clause reads: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Unfortunately, that clause has little meaning today because of an early court decision limiting its scope (the slaughterhouse cases.)