The Display of the Ten Commandments and the Incorporation Doctrine

What is most disappointing are people like Alan Keyes, people who should know better, suggesting that the First Amendment applies only to federal action. Keyes is arguing against the concept of incorporation; the notion that the Bill of Rights also limits state action. Indeed, Keyes has averred that "There might be states in which they have established churches where subventions are given to schools and so forth to teach the Bible."

In Barron v. Baltimore in 1833, the US Supreme Court ruled against businessman John Barron who was suing the city of Baltimore. Barron accused Baltimore of taking land for public use without just compensation in violation of the Fifth Amendment. The Court ruled that the Bill of Rights only applied to actions of the federal government. That jurisprudence survived until the early part of the last century.

In the wake of the Civil War and the emancipation of the slaves, the 14th Amendment to the Constitution provided that, "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."

In 1925 in Gitlow v. New York, Socialist Benjamin Gitlow sought relief from New York's Criminal Anarchy Law under which he was convicted of penning revolutionary pamphlets. The US Supreme Court, using the 14th Amendment, extended the protections of the Bill of Rights to state actions, under the doctrine of incorporation. Subsequent decisions applied this doctrine to other protections of the Bill of Rights.

The doctrine of incorporation may, in retrospect, have been an extension of the Constitution and its Amendments beyond original understanding and as such subtly undermines the long term authority of the document. Nonetheless, it has on balance had a salutary effect. Surely Keyes himself and other Conservatives have embraced the incorporation doctrine when used to keep the state from taking property without appropriate compensation.

Some state governments that are dominated by Liberals have been too willing to impose restrictions on property owners that come very close to expropriating property for public use without just compensation. Unless protected by a state constitution and a reasonable State Supreme Court, it is possible that state action could also make more

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