November 26, 2022

In this episode, Kurt is joined by Kevin Drendel a lawyer who has worked on First Amendment cases. They talked about the power of the federal judicial branch and how that court system has found a way to give itself more power and oversight into the lives of Americans. If you have a question or comment regarding this episode you can comment below or give us a call at (505) 2-STRIVE.

Listen to “Episode 17: The Incorporation Doctrine” on Spreaker.

Kurt: Good day to you and thanks for joining us here on another episode of Veracity Hill. The past month or so we’ve been devoting the show to political issues and talking about some things that Christians like to think about and perhaps some things that Christians ought to think about and I hope that perhaps if you’re a non-believer you are recognizing and making yourself aware of how Christians can have a rational basis for some of the beliefs they have and of course during the past month hopefully you’ll see that Christians can have rational political beliefs that might stem out of their theology, their worldview. Today we’ll be talking about an issue that is deep in jurisprudence. We’re going to be look at the philosophy that is called the Incorporation Doctrine and this philosophy stems off of a certain interpretation of the fourteenth amendment and yesterday I did an interview with Kevin Drendel, a lawyer who has worked on first amendment cases and so I was thankful for the opportunity that we had to sit down and he talked about various issues here, about the court system, the judiciary branch, and one of the reasons why this is important for Christians to learn about is because many of the issues we’re facing today in religious liberty deal with this doctrine, this philosophy, and a lot of Christians don’t even know it. A number of the court cases that were major court cases of the twentieth century regarding religious freedom were Cantwell v. Connecticut in 1940 and Everson v. The Board of Education in 1947. These court cases incorporated at the state level the right to free exercise of religion which is a first amendment right, but what that also did was it pitted rights against rights. The rights of one person against the rights of another person and the key issue we’re going to be talking about today is the jurisdiction. At what point can a people be self-governed and at what point ought they not to be self-governed and so with these cases, it’s really important to look at historical context and we do that a little bit in the interview. Stephen Waldman of a book called Founding Faith, he writes of the first amendment,
“We must remember that at the time the Bill of Rights were passed, the lawmakers cobbling together, the delicate compromise, did not know that the fourteenth amendment would later apply the first amendment to state and local matters.”
He writes,
“That the founders did not fret over whether the first amendment would ban prayer in school, because they assumed that would be decided on the local level. Had they known that the language they had written, establishments and respecting, would end up regulating every nook and cranny of American life, the political dynamic would have been difficult.”
And certainly I think he’s right that in the sense that had they know about the fourteenth amendment which was an amendment that was later ratified into the Constitution, perhaps they would have been more careful with their language, or they would have been more precise I should say. I still think they were careful, but they would have been even more precise, and so we’re going to be talking about the fourteenth amendment and the Incorporation Doctrine that stems from it and I know this might get a little deep for you, but feel free it you’re listening to this show on podcast, feel free to pause and do a quick Google search if you need to look something up, a court case we might reference, or the Incorporation Doctrine itself which I introduced you to and then after the interview here we’re going to be taking calls and we’re going to have a panel discussion perhaps here. We’ve got a couple guys in the studio. We’ve got Chris and Kevin.
Voice: Hello.
Kurt: So if you want to have your voice heard, give us a call, the number is 505-2STRIVE. That’s 505-278-7483. Please do call in with your comments and question and we’ll go ahead and play this interview here with Kevin Drendel and then we’ll be happy to take your questions.
Kurt: Well joining me now here in studio is Kevin Drendel and we are going to be talking about the Incorporation Doctrine, something that I’ve studied a little bit myself, but also he has experience in looking at first amendment cases and I’m also looking forward to his insight, not just on what he can offer us here on this philosophy but also other judicial philosophies that he has seen with regard to how the federal government looks at state governments and where they think the jurisdiction should be for various issues so Kevin, thank you so much for joining me today.
Kevin: You’re welcome. I would much rather talk to speak about theology than jurisprudence, but that’s not what I’m here for I guess.
Kurt: Sure. Well, as we probably would agree, our view of jurisprudence would come forth out of our theological views so for that we’ve likely got a lot of common ground on that. Okay. So one thing that I’ve studied in the past has been something called the Incorporation Doctrine and for those of you who are unfamiliar with this, the Incorporation Doctrine is a philosophy that at least from what I’ve learned, and Kevin, feel free to correct me, is based off of an interpretation of the fourteenth amendment, specifically the due process clause that state governments are to be held to the same standard as the Constitution, so it brings the federal law if you will, to the state level, and so this has certain ramifications and whether they are good or bad ramifications is up for debate. Some people you think maybe the debate for some is long past, but for others maybe they’d like to consider a bygone era, it’s really the way of the future and would solve a lot of the issues today, especially as it pertains to religious freedom and I’ll talk a bit about that later on and so the question that I have is “Is this philosophy of incorporating the Bill of Rights or the Constitution, one that finds itself in the language of the fourteenth amendment?” and again I’m not sure how much you’ve been exactly on top of this but maybe you can tell us a little bit about that relationship between the federal and the state governments and even maybe where you see some of that overreach and then once you tell us a little bit about that, then I’ll be happy to give some examples of these court cases where the Incorporation Doctrine was used.
Kevin: This is a very deep well and it’s an issue that’s been around since the Constitution was created. Obviously we know about the separation of powers, we have the legislature and the executive and the judicial branches and they are all co-equal in theory and the states especially in the very beginning had a lot of autonomy from the federal government and that was very quickly challenged in Marbury v Madison and from that date forward it’s been a long, slow erosion. I think what’s important to understand is you look at this that the law is based, at least case law, is based on the principle of precedence, so judges decide cases based upon precedence for the way cases had been decided in the past and there are some watershed cases like Roe. v Wade where Justice Blackman, who by the way I played bumper pool once when I was in college literally…
Kurt: Wow.
Kevin: The neighbor in Wisconsin Lake where we have a house, they were friends because there was a psychologist and a heart surgeon husband and wife who worked at the Mayo Clinic and he had been private counsel for the Mayo Clinic and he was…
Kurt: Wow.
Kevin: A friend of the family. They called him Blackie. So I played bumper pool with the justice who wrote Roe v. Wade.
Kurt: Oh my.
Kevin: There are some watershed cases like that where literally he pulled principles out of the air and we talk about the penumbra that these privacy rights are founded in the penumbra of the Constitution. A penumbra is, if you look at an eclipse of the sun and you see the light around the edge of the sun, it’s not the sun, it’s the light that’s kind of leaking out from behind the moon around the sun so the penumbra is not in the Constitution, but they found it somewhere hanging around it.
Kurt: Yeah. Right.
Kevin: Out of thin air, so you have some watershed cases like that, but then you get long periods of time where that precedent is followed and that’s what’s happened with the Incorporation Doctrine going back a long time.
Kurt: Yeah. So the way as you’d mentioned, the way that used to be is that states had a lot of autonomy and you see this, in 1833, there was a case called Barron v Baltimore and here it was the opinion of the court that the first ten amendments, and so to cite the language here of Chief Justice John Marshall at that time, that the first ten amendments contain no expression indicating an intention to apply them to the state governments. And he says regarding the Supreme Court, “This court cannot so apply them.” So here you see an explicit statement, here we are talking about precedence, what is the precedent of the court, and here you have explicitly stated that the federal government and the state governments were to be separated.
Kevin: Right.
Kurt: For those of you who are listeners to the show, we’ve talked about sort of the history of religion in America and how some of the state governments had a formal religion so Connecticut for example were full of Congregationalists and that was the official position. Maryland was Catholic until it became Anglican and there were a number of state governments that had official denominations of Christianity. There were others that took a different approach and were a bit more like how we have our society today where there were a variety. The point is this. The state governments themselves could decide how they wanted to live and later on in the twentieth century a phrase would be coined that these were laboratories of democracy and so this is the way that it used to be, but there was some point then when the court shifted and so what we see is the passing of the fourteenth amendment and the due process clause and for those of you who are unfamiliar with the due process clause let me go ahead and just recite it for you here so you’ve got it in your ears. In the fourteenth amendment of the Constitution you have here in the first section,
“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. 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.”
Now to put this into historical context, the fourteenth amendment passed after the Civil War and as I understand it, it was by and large meant to provide and to secure the rights of slaves who had been freed, but it seems the government took the text out of historical context and so began applying it into scenarios that the ratifiers of the amendment never would have foreseen so one fine example is the issue of homosexual marriage. If the ratifiers of the amendment anticipated that homosexual marriage would be something that the Supreme Court would categorize under this amendment, they would be going insane because in every state of the nation at that time, homosexual behavior was against the law. It was a felony. Never would they have imagined in their life that this text would have been interpreted in that way and for some of them they never saw it interpreted that way because it was only until the twentieth century and in 1925 you see Incorporation Doctrine first sort of utilized in a case called Gitlow v. New York and that was an issue regarding the freedom of speech, so Benjamin Gitlow was charged for passing out pamphlets called The Left-Wing Manifesto. The Supreme Court convicted Gitlow because his pamphlets called for a revolution and overthrowing of government, but to agree with the court’s thinking hereon this case is to miss the point, and it’s that the federal judiciary made a ruling that should have just been done at the state level so I would argue that it was beyond the scope or the jurisdiction of the court so even though I may disagree with Gitlow for what he was proposing, the question is “What is the proper level here of jurisdiction?” and so this is an important way of distinguishing the issue because even today in our political discussions we’re talking about pro-life issues, we’re talking about homosexual marriage issues. Are these issues that the federal government should deal with or should these be state issues and so that’s an interesting thing because the Obergefell decision last summer, summer of 2015, was a case where you had states coming together, you had the people voting within the state to define marriage between a man and a woman and the states were then sued and who is to say whether a state can decide what marriage should be? If the states can’t decide that issue, it’s got to be the federal government, the judicial branch, maybe we don’t really have states anymore. Maybe now it’s just one state, the United State of America because we can’t make our own laws in our own states and civilly respectfully disagree with other states that might think otherwise. My own personal view is I think that if we have these laboratories of democracy, we’ll see who has the better laws and there will sort of be natural consequences of those laws so that’s my own personal view, but I’m talking too much on this Kevin and I think we should probably get your voice in on this so would you say that sort of my overview there, I mean I call it judicial overreach, but maybe other people wouldn’t call it overreach today. Is that right?
Kevin: Yeah. That’s pretty accurate. Any legal scholar would disagree. I mean you are right about how the federal government has swallowed up state authority and imposed itself upon state authority and it’s not just by the Incorporation Doctrine. It’s through the commerce clause and we’re so intertwined these days with the internet and with everything happens in interstate commerce, that the commerce clause is far-reaching, much more far-reaching than it was in the days when the Pony Express rode. That’s another way that the federal government has exercised authorities over states but then there’s some more insidious ways. For instance, education continues to be a province of the states and the federal government can’t impose upon the state regarding education and yet we see it happening all the time. How does it happen?
Kurt: Right. Money is attached to the regulations.
Kevin: Money. The federal government makes money available to the schools.
Kurt: If they do certain things.
Kevin: The schools become dependent upon the federal grants of money and they won’t get the money if they don’t comply with the federal laws so that’s another way that the federal government has exercised authority over states. There’s a lot of other ways too and I think part of it is just through the increasing complexity and interrelationships that we have in modern life compared to life in the 1700’s. Part of it is because the philosophies that have been predominant in society have changed so when the Constitution was passed we had this idea of natural law, that law came from God, that people had inalienable rights, that didn’t derive from them or from the government, they derived from the source of a higher being, and therefore couldn’t be taken away and they kind of stood on their own. That is not the predominant view of the world today and we’ve become more secularized obviously over time and continue to become more secularized over time so there’s certainly an interrelationship between how the Constitution’s applied and the secularization of our society, but this idea that the Constitution is a living breathing document goes way back and it got a toehold and then it got a foothold and today that is the way that the courts view the Constitution. It’s a living, breathing document.
Kurt: As someone like yourself who has worked on first amendment cases, the first amendment protects our freedom of speech, protects our freedom of assembly, and it seems that when you come up with a scenario like a high school football pastor wanting to pray with his team, you’d like to think that he has a right to do that and maybe then there is the right of a player on the team or assistant coach that’s an atheist and he doesn’t want that, it seems like you have this case of one person’s right over another person’s right.
Kevin: Very much.
Kurt: And so then if that’s the case who gets to decide the winner and loser of that case?
Kevin: Right. That is a pretty good way to put it. We all have individual rights, but those rights end somewhere in the vicinity of someone else’s individual rights.
Kurt: You can’t yell fire in a theater.
Kevin: Yeah.
Kurt: And you can’t preach Nazism at the entrance of a Jewish temple. Right? Or synagogue. There are limits it seems, but there are cases where it seems like we’d say no. A football coach, especially if his team wants him to lead them in prayer but all of a sudden the Supreme Court of the whole nation, the final spot here says “No. You can’t do that.”
Kevin: I will answer that the best that I can.
Kurt: Okay.
Kevin: Because we’re biting off incredibly huge areas of law.
Kurt: Okay.
Kevin: And we’ve glossed over a lot of them that we could probably spend eight hours talking about each one.
Kurt: Sure.
Kevin: And not exhaust what there is to talk about. We could focus on a context of first amendment in the schools, but I want to back up a little bit and maybe put a little bit bigger perspective on all of this. Let me give you a couple of examples that are real-life examples that I was involved with.
Kurt: Okay. Great.
Kevin: So we in our firm over the years have represented a lot of local governmental bodies and every once in awhile a first amendment issue comes up, so one first amendment issue that came up happened at a school where there were people on the sidewalk handing out flyers and I don’t recall if they were flyers having to do with abortion or flyers having to do with salvation. I don’t recall. We get a call from the principal that people are complaining that their kids are being confronted by these people on the sidewalk right in front of the school so the law is that the sidewalk is a public place and there are certain forums we call them, public forums, that are considered to be almost sacrosanct. They are the public forums where freedom of speech has its greatest privilege and that includes a sidewalk or a street or a park, public gathering places. The school district wanted to tell those people to go away.
Kurt: Get off our sidewalk.
Kevin: And we represented the school district so you have to be sensitive to what your client is asking you about, but part of your obligation as an attorney is to tell them what the law is and what they should do based upon what the law is and in that particular case the answer was if they’re not blocking the sidewalk and they’re not disrupting the school day, the purpose of school is education, if there is disruption that might be an issue, if they aren’t doing those things, they’re just peaceably handing out flyers they’ve got a right to be there and that’s the end of the story. So that’s one example. We had another very similar example, different school district. Similar situation but these were abortion picketers with signs and people were driving their kids to school and being confronted by these very graphic signs and there were parents who were outraged that someone could be doing this and their children were crying and it was a scene and again I get a call from the police chief saying “What do we do?” This is a chief who’s been around for awhile and he knows that there’s issues. They can’t just go in there and tell people to get off the sidewalk and arrest people.
Kurt: Yes.
Kevin: And again it was the same analysis.
Kurt: But there’s something a little different here because….
Kevin: Well, it’s more graphic.
Kurt: Yeah.
Kevin: It’s more in your face. For some people it was speech that was not just provocative, but they felt that it was, I don’t know what the word is.
Kurt: Disturbing.
Kevin: Right.
Kurt: And regardless of what your personal philosophy is, if you think that that is an effective way to show people the reality that there are actually human beings being murdered, the distinctive issue we’re dealing with is, is it okay to do that on public school property where minors are seeing this?
Kevin: I think the question you’re asking is whether it’s effective.
Kurt: You could have something be effective but still be causing a mental disturbance to young ones.
Kevin: Right.
Kurt: So continue.
Kevin: So the long and the short of it is that they were being peaceful. They were well aware of what their rights were. They were acting within their rights and the answer was that they should be allowed to remain as long as they weren’t disturbing the school and they weren’t blocking the sidewalk.
Kurt: So they had a right to be there.
Kevin: They did.
Kurt: Then I would say, yes, at that point we would say, then is it effective?
Kevin: So there’s a couple of examples, real-life examples, where the first amendment protected the exercise of religion and expression in speech so it obviously cuts both ways. The problem that you raised with your coach praying at school is how do you sort through those rights? Are they all equal or how do they get implied when the teacher has a Constitutional right, students have a Constitutional right, both to pray and not to pray. How do you figure those things out? You wouldn’t believe the number of cases. When I was in law school I did a whole semester in a class where I focused on the Equal Access Act, which basically is a federal act that says that if you’re going to allow a group to meet at school in an extra-curricular activity, you can’t say which groups can meet and which groups can’t meet based upon the content of what they’re meeting about, so you can’t allow the chess club to meet and tell the Fellowship of Christian Athlete group they can’t. Equal access, which is an extension of these first amendment rights that we’re talking about and the state has to be neutral. When it comes to first amendment, you can’t pass a law that is based upon the content of the first amendment expression.
Kurt: Let me give a more say provocative example here and then I’ve got some follow-ups. Suppose students wanted to start a satan worshipping club and for many Christians, devout Jews, and even Muslims, this could be very offensive, but not just offensive, not personally offensive, as in this is a great evil that should not be done and so do the parents of the community who elect their school board, can they tell the school board or vote people onto the school board who would then pass an ordinance saying no satan worshipping clubs?
Kevin: Cannot.
Kurt: And so who says? Is it the state level or is it the federal level.
Kevin: Well it’s the application of the principle that the state cannot censor on the basis of content.
Kurt: By state do you mean government there.
Kevin: Yeah. State meaning government generically.
Kurt: Right.
Kevin: So the extension of that is that the school board cannot pass a law that says
Kurt: Right.
Kevin: We won’t allow satan worshippers to meet.
Kurt: So in this case, the people that pay the property taxes for the school to run, support the whole school system, are unable, suppose it was 100% of a town.
Kevin: Right.
Kurt: Suppose it was all of the voters vote to say “We don’t want that going on at our school”, you’re saying that the government wouldn’t let them do that. Is that right?
Kevin: They would be in violation of the Constitution as they would if it was the other way around and it was the Fellowship of Christian Athlete group that wanted to meet and 100% of the community.
Kurt: Said no.
Kevin: Right.
Kurt: So in that case then, because as a Christian I would be sympathetic to the Fellowship of Christian Athletes being able to have the right to meet while at the same time it strikes me that if Washington D.C. is having a law that effects the whole nation, where and at what level is their self-governance? This is sort of the issue with Brexit recently. At what point do people have a say over how they want their towns, their regions, their states to live? Even if they disagree with the majority opinion or if they are holding the majority opinion they might still be nullified from their desires for their society.
Kevin: The law is the Constitution and going back to the fourteenth amendment, if you read the fourteenth amendment, the purpose of it really was to apply certain basic principles to the states. That was the very purpose of the fourteenth amendment. What has changed over time is the scope of those principles that apply.
Kurt: Okay.
Kevin: We’ve been going this direction for a long time and it does cut both ways. The satan worshippers and the Christian athletes are both protected by the same law and it is the grounds where we are fighting our culture war today. I mean it really is that ground and….
Kurt: So is one of the ways that we should be fighting it, should we say, should we be striving to gain the authority, the power? Do we want to have the federal government always agreeing with us or let me phrase this two ways. First, is it more philosophically accurate to say “Hey, to each state his own.” Right? Or secondly is that just more advantageous? So is it more effective? Because maybe it’s not effective. Right? If the people of Massachusetts and the people of Kansas may disagree on a number of moral issues and all of a sudden you have Washington D.C. picking the winners and the losers.
Kevin: We could have a Muslim state and a Christian state.
Kurt: We could. Or a Mormon state. Utah.
Kevin: Yeah.
Kurt: But maybe that would be a good thing. Maybe there would be a diversity of views here. Maybe that’d be a bad thing. I don’t know. What do you think?
Kevin: I think whether anyone thinks it’s a good or a bad thing it’s not likely to happen.
Kurt: Sure.
Kevin: Given the jurisprudence that we live with at the present time.
Kurt: Yeah.
Kevin: And the history of it.
Kurt: Call me an idealist.
Kevin: I sidestepped that one didn’t I?
Kurt: But you are right in that here I am talking about something that the direction that the country is headed is just more, and I’ll use a provocative term here, authoritarian insofar as the federal government is denying the people of a state to determine what they want their laws to be because in every single case, with homosexual marriage for instance, in every single case where a people have voted, voted in favor of the traditional view, it has been overturned by a federal judge.
Kevin: Right.
Kurt: What do we do when a minority of people are telling a majority and sometimes a large majority of people what they can’t do? Especially when we don’t think the minority view fits with God’s design for humanity.
Kevin: There’s a whole lot wrapped up in all of this. Let me just throw this out. Then let me come back and give it a bigger perspective. The idea that laws protect the minority against the majority is actually built into the fabric.
Kurt: Yes!
Kevin: Of the Bill of Rights.
Kurt: In many ways, it’s a good thing as well!
Kevin: Right.
Kurt: Yeah.
Kevin: So it’s an extension of protections that we all enjoy as individuals, but let me give a different perspective though. I really wrestled with these things in law school because I was a Christian going into law school. I became a Christian in college. I was six years out of college when I went to law school and was very involved in a local church and thought I would go into ministry. That was my ambition at one point, and God sent me off to law school. I wrestled with these issues a lot in law school and have continued to work through those issues my twenty-five years of being a lawyer because I’ve done local government law where we get first amendment issues from time to time in real-life situations where people are upset and in your face.
Kurt: Yeah.
Kevin: A little different perspective than when you’re in a library reading a book and my own views actually have changed a lot over the years. I say that as a preface to throw out a different idea and it’s one which I think is increasingly, I feel, is increasingly going to be an issue for Christians as we live I think in a post-Christian nation.
Kurt: Sure.
Kevin: Which means that we live in a nation that’s increasingly going away from those fundamental beliefs that Christians hold dear that I don’t think there’s any doubt the country was founded on. I just see us gravitating further and further away. That could change and God is sovereign. God can do what He wants to do and turn this nation in a different direction, but I think about the fact that the first century church spread the Gospel through persecution and that persecution scattered the disciples and scattered the early believers around the world and but for that persecution would Christianity have spread the way it did? I don’t know, but we know that that was a component of the spread of Christianity in the early church. Today, the church is growing by leaps and bounds in China. China by, I don’t remember what year, I saw a statistic, that by some year, like 2021 or something like that.
Kurt: It’ll be the largest.
Kevin: The largest Christian church in the world will be China.
Kurt: Right.
Kevin: In an impressive regime that’s now becoming more oppressive. It’s opened up and now it’s becoming oppressive. In Iran an estimated half million to a million Christians in Iran who are underground Muslim background Christians who are meeting privately in homes, you see God working almost most forcefully in the darkest of areas so that’s one perspective that I always return to and when I see our country gravitating away from Christianity and I see things happening that don’t sit well with me, I feel like God always brings me back to, number one, He’s sovereign. He’s in control. He puts rulers in place and He takes them out. Number two, that He’s doing His work and that to a certain extent some of these changes that we’re experiencing may actually be some pruning perhaps or maybe helpful in terms of the strengthening the church in our country.
Kurt: It was Tertullian who wrote that the blood of the martyrs is seed for the church so in that sense it is perhaps right that it can be an opportunity for the Gospel to be more firmly rooted for the lives of believers and opportunity for us to then share the Gospel with an increasingly non-Christian society around us. Maybe the Gospel message stands out more.
Kevin: Yeah. I think the lines will be more clear. It’ll be clearer whether you’re a Christian or not a Christian as time goes forward.
Kurt: Yeah.
Kevin: The people that are Christian in name. Christian because they grew up that way. Christian because, just because, at some point are going to say “I’m not a Christian”, and I think it’s going to become a little more black and white, a little more evident who’s a believer and who isn’t over time.
Kurt: Yeah and that can be beneficial and yet it seems we need to still keep in mind here how we as a society should yes, protect minorities, which of course maybe Christians are a minority or increasingly becoming one it seems, in terms of cultural influence at the very least but how then should we live in a society. Right? Yes. We’ve got to keep in mind that our first priority is the Gospel message and
Kevin: Right.
Kurt: If Christians are losing these cultural battles, these political battles, there are greater things at work. But practically speaking, for me one of the ways I’ve found effective, instead of a call for a federal mandate on some issue that a Christian would support, this is why I’m a big states’ rights guy. It seems like a good compromise. Let the people of Kansas decide what they want. Let the people of Massachusetts decide what they want, and live in peace. Of course there will be some tricky issues that come with that such as what happens if a person moves? What do you do then? Or is that even effective, because if you want to get something you can just go across the state line, but at the same time it seems like shouldn’t we be respecting what the people of a state believe they want to have? What they believe is the right view on an ethical matter and to not be overruled? What do we do with that? Do we just live in the society where the judicial, what I call overreach, is just ever-growing, ever-expanding, even as you noted since the time of the birth of the nation.
Kevin: Yeah. Certainly Christians should not just go hide in a cave.
Kurt: The Benedict Option.
Kevin: Right. We’re part of the fabric of the society that we live in. We are salt and light. How we be that salt and light is going to be a little bit different for all of us. God’s given us each different gifts and called us to do different things. He called Daniel to be high up in the government of Nebuchadnezzar and we’re not all in that position. I think some of us have the appetite for doing political things and others don’t.
Kurt: Right. For sure.
Kevin: Count me in the group that doesn’t, but there are people that I do and I think that’s a calling and I think that we should be trying to advocate for biblical values and be a voice that supports biblical values in our society and I do think that as a nation that we will be blessed or not blessed by God based upon where we stand on God’s framework. At the same time, render unto Caesar what’s Caesar and render unto God what’s God’s. I think personally that too many of us, and I include myself in that category at one time, have had an uncomfortable relationship with patriotism and I think some of what’s happening right now is helping us to sort that out maybe a little better than we’ve done in years past.
Kurt: So what you mean perhaps here is that Christians are beginning to put their faith in American government regardless of your party affiliation. Right? If you’re a Democrat or if you’re a Republican. If you think “If only we got the guy that I want or the gal that I want to be in office”, then everything will be okay and all the problems will be solved. Maybe that’s not the case. Maybe the reality is that there isn’t much change or sometime there isn’t much difference and even if you did get that person in office, there are still problems here. You still have to love your neighbor and your vote which you privately submit anonymously isn’t all that effective for the Gospel. There are more effective things for the Gospel and we can’t put our faith, our trust in American government.
Kevin: It’s comfortable to try to protect our turf and that’s human nature to want to protect our turf, but can we love our neighbor and protect our turf at the same time? The answer’s probably yes to some extent, but at some point there’s going to be a conflict.
Kurt: Finding that line.
Kevin: And are you erring on the same of protecting your own turf or erring on the side of loving your neighbor. We should be erring on the side of loving our neighbor at some point where there’s a conflict and that works itself out in all kinds of different ways and I’m not here to try to suggest that there’s one way to work that out, but those are issues and I think we’re facing those issues as a church in the United States as a whole as a country. There’s this wrestling match going on. Is it going to be steered by this secular humanist machine or is it going to be steered by the people of God and it’s kind of gone back and forth over the years, but it certainly seems to be contending more away from us at this point.
Kurt: Yeah. That’s right. Okay. So as I mentioned I’m kind of an idealist. I seem to like the idea of laboratories of Democracy. While it may be impractical.
Kevin: It was a good idea.
Kurt: Yes it was. And While it may be impractical, idealists are idealists for a reason so if I had to find a solution, what would you say are some steps that could be taken and how would we accomplish those steps? So I’m going to ask this question regardless of your own personal views. How could you help consult me on my position? How could we take the next steps?
Kevin: Christians should be engaged and not be hiding in a cave so the way to affect our government is to get involved in government, to get involved in the political process, not just to vote, but to get involved at local and state and national levels. The more Christians we have in political office the more influence we’ll have. It’s a pretty simple fact, so I think that’s a pretty fundamental way that we do it. I’m not sure I’ve got a solution for this, but the church is not united and I use the word church pretty loosely in that sense.
Kurt: Right. Right.
Kevin: There is no Christian voice. They talk about the religious right. I don’t know that religious right exists any more.
Kurt: Maybe it’s gone.
Kevin: It’s still a thing that people talk about, but that’s a segment. Even that, whatever that is, and whether it exists or not is a segment of the self-identified church in America. There’s a battle waging there too obviously. You’ve got churches that are increasingly embracing the progressive ideals of our modern society and those churches by the way are not growing.
Kurt: Yeah. They’re shrinking.
Kevin: The pew research shows that the churches that are growing are the evangelical churches. That’s going to continue I think over time and I think in my own opinion, I think that kind of flows with the idea that people are going to increasingly be aligning themselves with traditional Christian values or not, and the line between those camps is going to grow, maybe even within the “church” itself.
Kurt: It seems that for those that are seeking a Christian community, they’re looking for a community different than the culture that they’re experiencing. They’re weary from our culture and they want to hear a different voice, not the same voice, and so for those churches that are being so seeker-sensitive so as to change their views on ethical matters for the betterment or maybe they deem it as the survival of their own church, it’s actually leading to their downfall.
Kevin: There’s another suggest that I’ve got and I mention this with a little hesitance because the thought that triggers this is the way that the left, the progressive left, has worked behind the scenes in very strategic ways to effect societal change, that we don’t do. We kind of take things head on and the progressive left doesn’t do that. If you’ve seen those Dinesh D’Souza movies where he talks about how textbooks have been kind of, the progressive left has kind of infiltrated the textbook market.
Kurt: So cultural influence here.
Kevin: Exactly. A strategic one. I mean how strategic is that?
Kurt: Yeah.
Kevin: I mean to change all of our textbooks for all of our children so that they’re left leaning and now our children are growing up being fed a progressive menu. Jesus says to be wise as serpents and gentle as doves. We probably need to be a little wiser than we’ve been.
Kurt: Yeah.
Kevin: We need to have strategies. We need to understand how we could influence, where are the places where we can most influence our society and it isn’t necessarily standing on a street corner with a Bible on a soapbox.
Kurt: Yeah. Right. We’ve got to be good infiltrators and it seems like that’s where we find ourselves today is that we’re no longer in charge. We’re no longer the sail to the ship. There’s a different sail. There’s a new direction and all of a sudden we’re beneath deck and we’ve got to figure out how to get to the top again and so maybe the way to do that is to infiltrate the culture in various and yet winsome ways. Right? You don’t want to just be the annoying person because you’re not going to win anybody over and in fact you’re just going to serve to confirm some of their biases.
Kevin: They’ve kind of painted us into that corner haven’t they?
Kurt: Yeah.
Kevin: Our ideas are wide and we’re yelling and screeching and they’ve painted us into that corner.
Kurt: Right.
Kevin: And we’ve kind of allowed ourselves to be portrayed that way.
Kurt: Right.
Kevin: We’re supposed to be salt and light. I don’t think Jesus was like that.
Kurt: Yeah.
Kevin: Jesus would heal people and tell them
Kurt: Don’t tell anybody!
Kevin: We need to have a little more faith and confidence in what God can accomplish. We don’t have to be the one to turn the horde around. God will turn the horde around. We just need to be obedient and do what he says and sometimes it may look silly and it may seem ineffective, but if we’re obedient and if we have faith then we should be able to trust that God can do what He wants to do.
Kurt: I think that does it for my questions Kevin. I don’t know if you’ve got anything else you want to add. The issue is where is the line for self-governance? Maybe that’s what it ultimately comes down to and yeah, there’s a lot of work to be done politically and maybe some of the ways we bring that political change is through cultural change so maybe that’s how it starts.
Kevin: I happen to think that that’s where our influences is the most effective, but I’m no politician so take that with a grain of salt.
Kurt: Sure. And thank you again Kevin for joining us here on the show today.
Kevin: Yeah. Thanks for having me.
Kurt: And if that we’re going to be taking a short break and after this break, we’ll be having a panel discussion so stick with us through this short break from our sponsors.
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Kurt: Thanks for sticking with us through that short break from our sponsors and now we’ve got an opportunity to talk with Kevin and Chris here. For the first time we’re doing the livestream with you guys included so now everyone can see you. Right now we’ve got six viewers, woo hoo, watching us here on Facebook, so for those who have listened to the show over at the website Veracityhill.com, there was a discussion that I had with a lawyer by the name of Kevin Drendel on the Incorporation Doctrine and as that was playing Chris you told me “Well I still don’t really understand what it is.”
Chris: Yeah.
Kurt: So what were some of your questions about it?
Chris: I think if you could kind of rephrase it, like if you were to come up to me and say oh I believe in this Incorporation Doctrine, up until today I’d never heard the phrase, so if you were to give me a sixty second pitch as a man on the street of what is this Incorporation Doctrine that you believe?
Kurt: Yeah. So the Incorporation Doctrine, which is what I disagree with, but the philosophy is based off an interpretation of the fourteenth amendment, specifically the due process clause, which incorporates, it applies the Bill of Rights, the Constitution, to the states. For those that have listened to the show before, I’ve talked about how states used to have official religions.
Chris: Right.
Kurt: By incorporating the Bill of Rights now at the state level, states can no longer have an official state religion.
Chris: So you’re saying the Bill of Rights should be interpreted only at the federal level is what you’re saying.
Kurt: That is exactly my position.
Chris: Which ones are the Bill of Rights again?
Kurt: The first ten amendments.
Chris: First ten.
Kurt: Well, but now it includes more amendments. Basically the Constitution.
Chris: Okay.
Kurt: You can’t quite say the full Constitution applies because we’ve got different structures of the government, but in terms of the rights and privileges of U.S. citizens, those rights are supposedly supposed to be guaranteed now even at the state level and while that sounds nice, there are effects and as I argue, it creates the incoherency of the first amendment because by protecting one person’s right, you’re nullifying another person’s right so does a high school football coach have a right to pray with his team? Well maybe the assistant coach has a right to not have that happen and all of a sudden the Supreme Court is picking the winner and the losers. On my philosophy, which you know I’m open to being wrong on this, on my philosophy it’s the states that should decide and we’ll see how the states turn out, and that’s the way it used to be.
Chris: It seems like that’s what was originally
Kurt: That’s right.
Chris: Intended from the beginning.
Kurt: But now there are some difficulties so for example the issue of slavery. Do you just let states decide slavery’s okay, which the fourteenth amendment helped do away with that, so this gets into the discussion about how to interpret the fourteenth amendment, because as I mentioned with Kevin there are a couple of different options. You could say that the ratifiers of the fourteenth amendment knew exactly what they were doing knowing what would happen. I don’t think that’s the case. Yeah. I don’t think that’s the case. Another option is they passed the language and we should interpret it in light of its failure to be precise which is basically like saying, “Well you’re interpreting something that’s not there, at least explicitly.” It’s there contextually. Now I like and have preferred that interpretation, that we need to look at it in historical context and the judges should therefore interpret it based on its context instead of just what the words say, because if you take what the words say when we’ve talked about Biblical hermeneutics, you can take it out of context and it no longer means what it was meant. Right?
Chris: Yeah
Kurt: That’s a problem. Now in some of my research just last night I was looking more into it and I looked at, I found a case that the Supreme Court took, it was one of the very first cases that it had interpreted after the ratification of the fourteenth amendment, so it was fresh shall we say, and so this is the slaughterhouse case, the slaughterhouse cases, it was a consolidation of different cases, where they interpreted the fourteenth amendment in a narrow term and so let me just read here, this is from Cornell.edu, their law page explains this. The Incorporation Doctrine is a Constitutional doctrine which selected provisions of the Bill of Rights are made applicable to the states through the due process clause. This means that state governments are held to the same standards as the federal government regarding certain Constitutional rights. The Supreme Court could have used the privileges and immunity clause of the fourteenth amendment to apply to the Bill of Rights to the states, however in the slaughterhouse cases, the Supreme Court held that the privileges and immunities clause of the fourteenth amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States, not to the privileges and immunities of citizens of the individual states. That’s a little complicated, but suffice it to say, one of the earliest cases interpreted the fourteenth amendment shall we say narrowly, restrictedly. What we have with the Incorporation Doctrine is by no means a narrow or a limited scope. It is wide open, so that way, this is sometimes why the Incorporation Doctrine is called the selective Incorporation Doctrine. Well why is it selective? Well it’s only selective because the Supreme Court decides which court cases it wants to take and so in that sense it’s almost arbitrary. That’s why some of the amendments have applied. Some of them haven’t yet applied to the states, but I think it creates, the doctrine creates incoherencies because the whole purpose of the Bill of Rights was to be a restriction upon federal government. It wasn’t about, in a sense, securing individual’s rights at the state or local level. That’s why they never dealt with prayer in school until the twentieth century because it was always just assumed that was the local stuff. So I don’t know what are some of your guys thoughts? Again, my thoughts. It sounds nice. It’s a nice, fine idea, but this is sort of the piety myth. It sounds holy, but really it’s bad policy. Not that it’s official policy but judicial review.
Chris: As I was kind of sorting this through my head, I have a question going back to its original foundation. You expressed a thought in your interview that the fourteenth amendment was originally there right after our civil war here in this country, specifically do deal with slaves that were being freed.
Kurt: Right.
Chris: So like, the way that the fourteenth amendment was being applied, and I am coming with a very layman’s understanding of our legal precedent here, what would have been a good solution, because we were just coming out of a war with ourselves and now the federal government that now existed and saying “As a country, this is what we’re going to do,” and the fourteenth amendment was part of this. Correct?
Kurt: Yes. So the fourteenth amendment was ratified during the Reconstruction era cause if you’re looking…
Chris: Wasn’t that also a time when the federal government was saying “Hey. Y’all states. We’re all going to do this? This will not be allowed anymore.” Is that an infringement upon states’ rights?
Kurt: So that’s some of the debate.
Chris: Okay.
Kurt: The debate. And so the slaughterhouse cases, the way they interpreted it was more narrowly, that this was just about securing certain rights for now freedmen and it was only in the scope of the federal government, not necessarily in placing a restriction upon the policing powers of the states, so that is to say states could still pass laws, in some sense this is why there were still…
Chris: I guess so because of segregation.
Kurt: Segregation.
Chris: Long after we finished worrying about it. I guess it does make sense.
Kurt: So that’s how that could still be around. So yes, there are some pros and cons. The question is how should we interpret the fourteenth amendment and where do we draw the line? So even based on your interpretation, when then do we draw the line? Kevin. You look like you have a thought.
Kevin: I’ll speak in defense of the Incorporation Doctrine. I agree that you encounter this contradiction that occurs and the error I think that’s being made is that they’re picking sides, but the solution is that because of this contradiction, the government cannot rationally, coherently, be involved in education because if it is involved in education then it is taking sides. You have the whole question of what is religion and basically the traditional religions are at a disadvantage because those are obviously religions. You have a whole bunch of secular values that take on a lot of the characteristics of religion, but they’re allowed to be pushed by government.
Kurt: Right.
Kevin: So basically the way the Incorporation Doctrine has been basically anti-religion in everything that the government touches and so I think logically the Incorporation Doctrine is okay as long as the Bill of Rights are okay, as long as free speech is okay, freedom of religion, but then that means that there’s things the government cannot do, cannot get involved in, education, anything it touches has to be tailored so that there’s no question that this is preventing the free exercise of religion, things like that.
Kurt: But still doesn’t that create the incoherency that if the first amendment is that the government won’t establish or prohibit the free exercise of religion and if say the people of Utah come together and say “Hey. We want to be an officially Mormon state, tax-payer sponsored religion.” Right? Which is what you have in England. Right? If they did that, the federal government would say “No, no no.”
Kevin: Right.
Kurt: But in doing so is that a restriction of the free exercise of religion?
Kevin: Not as long as it’s unanimous. As long as it’s voluntary, that’s fine. Once you have one person who doesn’t want to pay into that…
Kurt: But that’s the beauty of the state system is that they can then move to another state.
Kevin: That’s true. They could, but what I’m saying is that they could also just stay where they are and not pay into it and not…
Kurt: So here’s a proposal because we’ve had discussions like this, like community standard and community contract. So suppose you’ve got a club and you’re starting a club. People join voluntarily, but you take fees to join the club and suppose your club buys some land and all of a sudden someone wants to move onto the land and one of the persons sells their lot and all of a sudden they’re like “Hey. I don’t want to be part of this club,” or “I want to be a part of this club, but I don’t want to pay the fee.” What do you do then?
Kevin: Well that doesn’t involve government so you can come off of…
Kurt: Suppose you’ve created your own club with rules and the rules serve as laws for the club.
Kevin: Sure. For anybody who wants to join…
Kurt: So take the analogy and make it bigger.
Kevin: It’s very similar but the government can forcefully take your money. I mean that’s how we establish…and for mutual defense.
Kurt: Right. Yeah.
Kevin: There’s specific things that government is good for and useful for and clubs should be more voluntary and that’s one of the issues here too because private clubs are allowed to discriminate, but how do you distinguish what’s a private club, what’s a public accommodation in terms of discrimination so I think I the government oversteps in terms of requiring public accommodation, prohibiting discrimination of private individuals that allows them to force people to bake a cake if they want to and only protects certain classes and things like that.
Kurt: So it seems like we would agree that it does overreach, but the question is where is that line?
Kevin: Yeah. And the incoherence, you could have the laboratories of democracy, but the incoherence can also be resolved by pushing it down to private voluntary contracts, more granular contracts rather than incorporating into the whole either national, social contract or per state social contract or locally.
Kurt: Yeah. It gets tricky.
Kevin: Yes, but regardless, I’d like to get the government out of education and stuff like that.
Kurt: Sure. Sure. And there maybe are more clear examples where when it has gotten involved, it’s muddied the waters and has had huge economic effects even upon the whole society, not just a state within a region or a state issue, it’s that “Our education system could be a heck of a lot better.”
Kevin: Right.
Kurt: “If the federal government got its hand out of it.” And education would become more affordable as well I would argue.
Kevin: Yeah. Absolutely.
Kurt: Well, I don’t know if you’ve got any other thoughts, Chris.”
Chris: In regards to not whether or not we should or shouldn’t, well first a thought on that actually, I was just thinking about this while Kevin was talking, when you think about real life too, like when you have a disagreement or something it’s usually best to go to the person in closest proximity to you who can solve the problem so if I’m having a life issue I won’t get the best solution by going to a man I know is trustworthy, but who lives 600 miles away and has no idea what my solution is, versus the man I talk to every week who’d be very well equipped, so I guess it may be a good rule of thumb when you get government, and federal government involved is, there’s probably six or seven more people down the food chain who’d be more qualified to solve this cause you bring this problem specifically that you’re dealing with in west Chicago to the federal government of America and they go “I don’t know what’s going on. What are you talking about? We’ve never heard of this problem before,” because they’re dealing with other federal government things. They’ve got a lot of things to do. It applies well in life, it might be a good policy for people to apply when it comes to legal things as well, but I’ve noticed to in life that this is a pattern that repeats over and over again in human history, whether or not states’ rights are a thing or not a thing is that human beings have always been obsessed with unifying under the banner of humans’ hubris and you see it through every world power that has ever existed. If you have a biblical worldview you see it first at the Tower of Babel where we all decided to be unified in glory of our own humanity and in doing so, and you see this in most sci-fi films as well. Star Trek. Star Wars. AI. Equilibrium. Somehow we’ve reached this unified culture in humanity, but in doing so we’ve lost everything that makes us really human, and so it makes sense that as a government, as a nation, we’ve shifted towards that anyway, even if we started more with “Yes. States’ rights all the way!” There’s always going to be a push, you’ll see it in our culture always, to just let’s just have a conglomerate non-specific unified government, one government, one people. We don’t really believe anything or stand for anything…freedom for every…
Kurt: Whatever that means.
Chris: Yeah. Freedom for everything which results in freedom of nothing, but it’s not new to this country. It’s repeated with every human group that’s assembled in masse in history. It’s an interesting pattern to note.
Kurt: That’s right. So that does it for our panel discussion here and I want to thank you for listening to today’s show. I’m grateful for the continued support of our patrons. Patrons are people that just chip in a few bucks a month to just keep this show going and also grateful for the partnerships that we have with our sponsors. Defenders Media, Consult Kevin, The Sky Floor, Rethinking Hell, The Illinois Family Institute, and Evolution 2.0, and I want to thank you, those that are watching on Facebook live here. Thanks for joining us here for the panel discussion. If you want to catch this episode or every episode you can go to test.veracityhill.com. We stream the show live 1 PM Central time every Saturday and thus far as best we can we’ve done it so thank you to our listeners who have been very supportive of the work that we’ve done here and if you’ve got any comments or questions on the show, you’ve got some topic recommendations, you can give us a call and leave us a message. So the number is 505-2STRIVE. That’s 505-278-7483. Thank you to the tech team today here. We’ve got Chris and Kevin and to our guest, Kevin Drendel, thanks for joining me with that interview, and I want to thank you for listening in and for striving for truth on faith, politics, and society.

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Kurt Jaros

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