Expert: Michael Troy - 8/9/2007

Question
I am currently doing a research paper about church and state and keep finding information about how its related to the 14th amendment. However, everything i read about it does not seem to make sense. Here are some examples of what i am talking about...

"The amendment introduces the concept of incorporation of all relevant federal rights against the states. While it has not been fully implemented, the doctrine of incorporation has been used to ensure, through the Due Process Clause and Privileges or Immunities Clause, the application of most of the rights enumerated in the Bill of Rights to the states."

and...

"If the 'establishment clause' were to be applied to the states by the doctrine of incorporation, only the state legislatures would be effected. The Supreme Court has yet to interpret the incorporation doctrine to allow for any restrictions originally placed on one branch of government to be 'incorporated' to another branch. Any restriction originally placed on Congress may only become a restriction on the state legislature, not to the executive branch"

So i was wondering if you knew anything about this and if you do, if you could try to make sense of it for me. Thanks

Answer
Hi Shawn,

It sounds like you have stumbled across a fairly complex legal situation.  It is particularly complex because there is not much logic in how it is applied.

In the early 20th Century, some Supreme Court Justices began asserting that the 14th Amendment caused the entire Bill of Rights restrictions on the federal government to be applied to State governments.  The Supreme Court has never fully applied the entire Bill of Rights to the States, but is has limited State action by selecting certain rights within the Bill of Rights.

The Supreme court began to apply the First Amendment to States via the Due Process clause of the 14th Amendment in a series of cases in the 1920's.  The Court gave very little explanation for why it thought this change was appropriate.  It simply did it.  The Establishment Clause was not applied the States until the Supreme Court case of Everson v. Board of Education (1947).  In that case, the Court simply cites as precedent an earlier decision applying the First Amendment to the States in regards to a free speech case and simply asserts that all of the First Amendment applies to States.  There is no good explanation as to why this very major change is appropriate.

So while the complete bill of rights has not been incorporated into the 14th Amendment, the First Amendment has.  States are restricted from making any law regarding the establishment of religion under this doctrine.  The only reason as far as I can tell is the Court basically saying "because we say so."

I hope this helps!
- Mike