Date of this Version
18 Tex. Rev. L. & Pol. 255 (2013-2014)
"When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty."'
Although the First Amendment explicitly protects individuals against only laws made by "Congress," the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from "depriving" persons of the fundamental individual liberties protected by the First Amendment.' Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) "is made applicable to the states [only] if the Justices are of the opinion that it was meant to protect a 'fundamental' aspect of liberty."4 However, sometimes the Court applies the Establishment Clause of the First Amendment against the states in ways that seem to restrict rather than protect liberty. Remarkably, sometimes the Court even interprets the Establishment Clause as requiring it to act as a judicial censor issuing heckler's vetoes which grant one group of citizens the power to deprive another group of citizens an opportunity to view and enjoy a state-sponsored display or memorial in a public park or building. The purpose of this article is to search for liberty under the incorporated First Amendment, and to seek to discern when liberty is advanced and when it is restricted by Supreme Court decisions concerning passive displays and monuments erected by state governments as part of a pluralistic public culture.