Wednesday, February 16, 2005

Until I read this, from Americans United for Separation of Church and State, I hadn't really paid attention to the fact that Janice Rogers Brown isn't quite sure the Bill of Rights should apply to the states.

(Remember, Brown's judicial nomination will reportedly be the first test of Senate Republicans' "nuclear option.")

As I've pointed out in the past, this is a line of thinking followed by a number of religious conservatives in defense of the notion that any state can establish a religion if it wants to. As Alan Keyes once said in a speech:

There might be states in which they require a religious test or oath of office. There might be states in which they have established churches, where subventions are given to schools and so forth to teach the Bible. There might be places where you and I might disagree with the religion some folks wanted to put in place over their communities. But guess what the Founders believed? They believed that people in their states and localities had the right to live under institutions they would put together to govern themselves according to their faith....

Is that what Brown believes? This is from a an AP story published when she first appeared before the Judiciary Committee:

In a 1999 speech at Pepperdine University titled "Beyond the Abyss: Restoring Religion on the Public Square," Brown disputed the doctrine of separation of church and state and questioned whether the Bill of Rights, including the First Amendment, applied to the states....

After the Civil War, the Reconstruction Congress wrote the 14th Amendment, which sponsors said was intended to extend the Bill of Rights to the states....

The amendment set off a century of debate in the Supreme Court on whether states were truly barred from infringing the basic guarantees of the Bill of Rights. Courts in the late 19th century gave deference to states. By the mid-20th century, however, the Supreme Court ruled that the amendment in fact prevented states from violating basic individual rights, such as freedom from unreasonable searches and the rights to free speech and a fair trial.

"The historical evidence supporting what the Supreme Court did here is pretty sketchy," Justice Brown said in her Pepperdine speech. "The argument on the other side is pretty overwhelming" that the 14th Amendment failed to apply the Bill of Rights to the states.

This won't become an issue when her renomination comes up in the Senate -- Brown knows what to say when questioned about it:

Asked by senators Wednesday about that comment, Brown said there was historical evidence pointing in both directions. But she also said she accepted the Supreme Court's view that the Bill of Rights protects all Americans today.

"What the Supreme Court said is what counts. Speeches are an opportunity to think out loud," she said.

But when Governor Roy Moore declares Christianity the state religion of Alabama, at least one federal judge will nod in approval.

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