First Amendment Under Threat

HOW DO GOVERNORS HAVE CONSTITUTIONAL POWER TO LIMIT FUNDAMENTAL RIGHTS LIKE OUR FREEDOM TO EXERCISE RELIGION?

Indulge me for a moment.

Allow me to set before you a brief legal history of the Constitution so that you may understand upon what basis a Coven of Governors, presumes to limit our rights of assembly and worship.

Under the “original understanding” of our Constitution (which means how the founders viewed the intent of the words) our Bill of Rights (which is addenda to the Constitution) applied ONLY to the national government (what we call today the Federal Government).

In other words, as the Bill of Rights was originally construed, the rights that you and I hold as fundamental, were not applicable against the states. The Bill of Rights applied only to the National Government—it was a limitation on the power of Congress, not the state legislatures (or the executive power of the states).

There was a very important court decision in 1833 called Barron v. Baltimore that ruled, in essence, (I am simplifying) that the states were not obliged to respect the rights enumerated in the Bill of Rights, only the Federal Government.

Look at the language of the Bill of Rights.

“Congress shall make no law…” Congress and Congress only was denied the power to abridge or intrude on the enumerated rights in our Bill of Rights. Only the federal government was denied the power to limit religion, speech, press, assembly and petition or for that matter, even in warrants and jury trial.

State action was not limited by the Bill of Rights.

Now look at the 10th Amendment.

This is what it says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Well, does the Bill of Rights prohibit the states from establishing a religion or prohibiting religious express or freedom of speech or assembly?

It does not.

Read the Constitution again.

Almost all of the 13 original states had established religions at the time of the ratification of the Constitution. The right to assembly, speech, press, search and seizure were all strictly abridged in almost all the slave holding states up through the surrender at Appomattox.

Now you can understand with greater clarity some of the underlying tensions that gave rise to the Civil War.

Now you can understand why the Reconstruction Amendments (13th, 14th, 15th Amendments) are so important in the legal history of our country. These are the amendments that were passed by the Republicans after the confederates were defeated.

Read the mighty 14th Amendment. It is arguably the most potent amendment to our Constitution.

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.

Compare this to the 1st Amendment: CONGRESS SHALL MAKE NO LAW…

The 14th Amendment means that the Bill of Rights NOW applies to the states.

This is called the INCORPORATION DOCTRINE. Through a series of Supreme Court decisions that evolved over time, the court has ruled that particular parts of the Bill of Rights are applicable against state action by means of the DUE PROCESS clause of the 14th Amendment. That’s how the Supreme Court has given power to the 14th Amendment to protect Civil Rights.

Here are some of the cases you should know as a patriotic American: Gitlow (1925) Freedom of Speech, Near v. Minnesota (1931) Freedom of the Press, Hamilton v. Regents (1934) Free Exercise of Religion, DeJonge (1937) Freedom of Assembly and Petition.

Today we grow up thinking that these freedom have always been protected by the Bill of Rights. That is not so. We are protected in our various states by the 14th Amendment, because it makes our Bill of Rights applicable to the states.

So how is it that these overreaching governors can limit our rights without it being a violation of the 14th Amendment?

Well we must look at how the dynamics of our constitution give rise to “play in the joints” between state and federal law.

If you look at that 10th Amendment you will see that the powers not delegated to the Federal government are reserved to the states.

Of all the powers reserved to the states, THE POLICE POWER is perhaps most important. Police power is the power of the state to protect the health, safety and welfare of its citizens. It is a very important and robust power. This is what Wikipedia says, “In United States constitutional law, POLICE POWER is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.”

In short, this is the power that can limit certain rights during a pandemic. For instance, the right of assembly.

The states absolutely have powers, generally exercised through the executive (the governors) to limit rights so long as those powers are “equally applied”, “narrowly tailored” and “rationally related” to a “compelling state interest.” These are the magic constitutional phrases that state actions must demonstrate under the 14th amendment in order for the Supreme Court to rule that they are permissible.

Problem is, as I explained in my essay of about a week ago, that these powers as they are presently enforced cannot be shown to pass constitutional muster.

Furthermore, state actions are generally challenged in state courts. And while state courts do have power to apply federal law, their primary function is often perceived or bent in conformity to state interests. But if state action is violative of federal law, the Federal Courts also have jurisdiction in these cases.

And this is how these governors, these enemies of liberty, have intruded upon our federally protected rights, just like the segregationist governors did of old. They are the same ilk. They are certainly the same party.

In addition, many federal district court judges are corrupt and rule contrary to the express language of the Constitution.

But anyway, the problem is that the application of these executive orders has NOT been “narrowly tailored” to conform to Supreme Court standards.

Example: is there anything about church or Synagogue gatherings that is intrinsically different in terms of social distancing rules, than standing in line or browsing in Walmart or having an abortion in an operating room? No one will convince me that social distancing guidelines cannot be respected with a Church, but will at CVS. Do you really beleive that the six feet guidelines are can be respected during an abortion? If chairs are separated by six feet, what makes a church different from a Target or Dollar Store?

Example: why is hiking on the Pacific Crest Trail or going to the Beach violative of social distancing guidelines, while going to and browsing in a Marijuana Shop is permissible?

The restriction on Houses of Worship, cannot be shown to be “equally applied” or “rationally related” to the “compelling state interest,” The application of these social distancing rules is not being applied uniformly. This is an equal protection issue.

It’s a civil rights issues. The left has done this before. They are the same old party.

The 14th Amendment protects Americans through the due process and equal protection clauses. It protects us from state actions undertaken under color of law, when those actions are arbitrary and not rationally related to a compelling state interest.

In short, the problem is NOT that governors have the police power to limit rights under certain compelling circumstances, like a pandemic. The problem is that the exercise of these powers by this coven of atheistic progressive governors is ARBITRARY and not RATIONALLY RELATED or NARROWLY TAILORED to the purpose and exercise of those police powers.

In other words, it is impermissible under any reasonable interpretation of the law.

That is my opinion.