George Washington’s Proclamation of Neutrality, Thomas Jefferson’s Louisiana Purchase, Abraham Lincoln’s Emancipation Proclamation, invasion of the South, and suspension of habeas corpus, Harry S. Truman’s railroad seizures, and the growth of militarism domestically and internationally by George W. Bush and Barack H. Obama are all examples of executive overreach; examples of when the President used powers not given to him by the Constitution or exercised by his predecessor. Executive overreach is neither unique to the American system nor new to our time. Efforts to limit executive control, whether it be an elected president, entrenched oligarchy, or hereditary monarchy, have defined Western political thought and reform since Magna Carta was signed by King John of England in 1215 at Runnymede. The greatest and most enduring thinkers—John Locke, Baron de Montesquieu, Jean Jacques Rousseau—that influenced the political revolutions of the 18th Century and still define the contours of our current political paradigm were concerned with restraining executive authority through the dispersion of political authority. In 1776 the U.S. declared itself independent and proceeded to rid itself of an executive and parliament that had usurped their authority. But no sooner did America win its independence did it seek to reconcentrate power into a centralized governing structure by ridding itself of the Articles of Confederation and ratifying the U.S. Constitution. The responsibility of an enlightened and engaged citizenry is to thwart all efforts of overreach.
Theodore Roosevelt was one of the most colorful presidents to serve the Republic. He was a rancher in the North Dakota Badlands, led the Rough Riders up San Juan Hill and received a Medal of Honor for his gallantry, the only President with such a distinction. While climbing a Mountain in the Adirondacks of New York in 1901, word reached Vice President Theodore Roosevelt that the condition of President McKinley had rapidly deteriorated after an assassination attempt a week earlier. The next day, McKinley was dead, and Roosevelt was sworn into office as president. Roosevelt brought an ideology to the Office of the President that was a refutation of the American Founding, Progressivism. This ideology included a dramatic expansion of power vested in one person, the president. Read more
On January 1, 1863, President Abraham Lincoln’s right hand was trembling. He had spent the morning shaking hundreds of hands as part of the traditional New Year’s Day greetings at the White House. He remarked to Secretary of State, William Seward, that, “if my signature wavers they will say I was afraid to sign it.” He then took up his pen and wrote his name firmly on the Emancipation Proclamation. As Seward co-signed the document, Lincoln mused, “Seward, if I am to be remembered in history at all, it will probably be in connection with this piece of paper”.  Read more
The Emancipation Proclamation, issued on September 22, 1862, promised emancipation for slaves residing in the Confederacy, unless the rebellious states returned to the Union by January 1 of the following year. The three-month deadline came and went, and slavery ceased to have legal sanction in much of the South. Although complete emancipation did not occur until the passage of the Thirteenth Amendment in 1865, Lincoln’s actions earned him the nickname “The Great Emancipator.” Read more
1. 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.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Fourteenth Amendment and a Return to Federalism
The Fourteenth Amendment to the United States Constitution was enacted in 1868, just three years after the Civil War. For obvious reasons, Congress didn’t trust the Southern States to voluntarily provide former slaves with all the benefits of U.S. Citizenship, so it specifically required them to do so via the federal constitution. Subsection 1 of the Fourteenth Amendment states:
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.
This amendment greatly undermined federalism since before the enactment of the Reconstruction Amendments, civil rights were largely protected by state constitutions. The Bill of Rights applied only to the federal government, which was smaller, and had less power. In fact, some Southerners still maintain that the Civil War was not about slavery, but about State’s rights and the power of the federal government.
Justice Harlan described this nationalization of civil liberties as a “revolution…reversing the historic position that the foundations of those liberties rested largely in state law.” Walz v. Tax Com. of New York, 397 U.S. 664, 701 (1970) (Harlan, J., dissenting). Beginning in 1897, the Supreme Court began interpreting the Fourteenth Amendment’s prohibition on depriving any person of “life, liberty, or property, without due process of law” as incorporating the Bill of Rights in to the amendment so that they also applied to the states. See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) (incorporating the Fifth Amendment).
The Free Exercise Clause of the First Amendment was incorporated in 1940 in Cantwell v. Connecticut, 310 U.S. 296 (1940). Given the history of the Fourteenth Amendment, it’s assumed the Court thought it necessary to apply the Free Exercise Clause to the states because they could not be trusted to protect religious freedom with their own constitutions and statutes. But those roles are now reversed.
The Supreme Court’s 1990 decision in Employment Div., Dept. of Human Services v. Smith drastically weakened the federal Free Exercise Clause by holding that general, neutrally applicable laws do not violate religious freedom. In that case, a general law prohibiting ingestion of a hallucinogenic drug called peyote applied to everyone, so the fact that it also restricted the freedom of Native Americans who use it during religious ceremonies did not violate the federal constitutional. Smith has had a profoundly negative impact on church religious freedom in such diverse areas as land use and the ability speak out on political issues. As a result, States are now increasing the protection they provide to religious freedom because the federal courts can no longer be trusted to protect it.
To date sixteen (16) states have taken it upon themselves to enact Religious Freedom Restoration Acts protecting their citizens: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia. And at least twelve (12) states have interpreted their constitutions to provide the heightened protection applied by the Supreme Court of the United States prior to Smith: Alaska, Indiana (possibly), Kansas, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin.
So states now provide the real protection for religious freedom – an interesting return to the federalism that was undermined when it was thought states couldn’t be trusted to do so.
 Alabama – Ala. Const. amend. 622, § V(a); Arizona – Ariz. Rev. Stat. § 41-1493.01(B) (2003); Connecticut – Conn. Gen. Stat. § 52-571b(a) (2000); Florida – Fla. Stat. ch. 761.03(1) (Supp. 2003); Idaho – Idaho Code § 73-402(2) (Michie 2003); Illinois – 75 Ill. Comp. Stat. 35/15 (2001); Louisiana – La. R.S. § 13-5233 (2010); Missouri – Mo. Rev. Stat. § 1.302 (2009); New Mexico – N.M. Stat. Ann. § 28-22-3 (Michie 2000); Oklahoma – Okla. Stat. tit. 51, § 253(A) (2003); Pennsylvania – 71 Pa. Stat. Ann. § 2403 (2002); Rhode Island – R.I. Gen. Laws § 42-80.1-3 (2002); South Carolina – S.C. Code Ann. § 1-32-40 (Law. Co-op. Supp. 2002); Tennessee – T.C.A.§ 4-1-407 (2009); Texas – Tex. Civ. Prac. & Rem. Code Ann. § 110.003(a) (Vernon Supp. 2004-2005);Virginia – Va. Code § 57-2.02(B) (2007).
 Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994), Cosby v. State, 738 N.E.2d 709, 711 (Ind. App. 2000) (“Indiana Constitution may demand more protection for citizens than its federal counterpart”); Stinemetz v. Kansas Health Policy Authority, (KS app., May 4, 2011), Rupert v. Portland, 605 A.2d 63 (Me. 1992), Attorney Gen. v. Disilets, 636 N.E.2d 233 (Mass. 1994); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990); Davis v. Church of Jesus Christ of Latter Day Saints, 852 P.2d 640 (Mont. 1993); Matter of Browning, 476 S.E.2d 465 (N.C. App. 1996); Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992) (en banc); and State v. Miller, 549 N.W.2d 235 (Wis. 1996). See generally Angela C. Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U. L. Rev. 275 (1993).
Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.