Memories of Fallen Marines Counter ACLU’s Latest Attempt to Tear Down Mt. Soledad Cross

My comments on this news:

The ACLU attacks Christian symbols again.  

They do it under the invented doctrine of separation of Church and State which they say resides in the First Amendment, plus a Founder’s intention as expressed in a private letter from Thomas Jefferson to a Danbury, Connecticut , minister.  

A legal problem for the ACLU is that the First Amendment is a prohibition on CONGRESS from making a “law respecting the establishment of religion.”  States, counties, and such are not prohibited from such action.    Moreover, “establishment of religion” as interpreted in the eighteenth century meant taxing the citizenry in order to support a pastor and religious functions.

Extension of the First Amendment to rule State action depends on a twentieth century interpretation known as the “incorporation doctrine.”  It is argued that Section 5 of the Fourteenth Amendment gives the federal government authority over certain State actions, specifically those touching on the First Amendment.   

It is not beyond the realm of possibility, IMO, that the incorporation doctrine will someday be challenged. It could happen this way.

A State that passee a “hate speech” law could potentially be challenged on grounds of violating the First Amendment.  Defending the law would put liberals --- who favor such content – in the position of arguing that States can pass any law infringing free speech that they choose [or likewise establish any religion]. 

That is, in order to defend State hate speech legislation, one would have to argue that the incoporation doctrine is not valid. That, IMO, is one way to restore State sovereignty and  free States from federal control.  

The test case, of course, should be carefully chosen in order that the victim of over-zealously applied legislation would appear sympathetic to a jury.                                 V.