In 1842, the city of New Orleans prosecuted Father Bernard Permoli, a Catholic priest, for conducting an open casket funeral. A violation of the Free Exercise Clause of the First Amendment? The Supreme Court said no: The protections in the Bill of Rights did not bind state and local governments. Then in 1868, the Fourteenth Amendment is ratified, and it incorporated the Bill of Rights against the states–or did it? On this episode, the failure of incorporation after Reconstruction.
Click here for transcript. Click here for Episode 1.
Available on iTunes, Spotify, Google Podcasts, TuneIn, and Stitcher.
Guests
Michael McConnell, Stanford Law School
Gerard Magliocca, Indiana University Robert H. McKinney School of Law
Resources
Schism, Plague, and Late Rites in the French Quarter: The Strange Story Behind the Supreme Court’s First Free Exercise Case, by Michael McConnell
Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? by Gerard Magliocca
Recent Episodes
Everything You Eat, Drink, and Wear | Season 3, Ep. 11

Government officials must obtain a warrant before forcibly entering a home (absent consent or an emergency). That rule goes back to the Founding. But in […]
Listen NowSpecial Weapons and Tactics | Season 3, Ep. 10

In 2020, a police SWAT team blew up Vicki Baker’s house after a fugitive barricaded himself inside. On this episode, we ask: who pays the […]
Listen NowPunishment Without Crime | Season 3, Ep. 9

Civil forfeiture is a civil rights nightmare, allowing police and prosecutors to seize billions of dollars’ worth of property annually—cash, cars, houses, bank accounts, and […]
Listen NowPublic Purpose | Season 3, Ep. 8

In 2005, in the case of Kelo v. New London, the Supreme Court allowed officials to seize and raze an entire neighborhood of well-maintained homes […]
Listen Now