“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
THE THREE GROUPS OF FREEDOMS
Let’s take some time to understand the Framers’ understanding and the erosion of each of the three groups of freedoms enumerated in the First Amendment.
FREEDOM OF RELIGION
The first enumerated freedom is the prohibition on the establishment of a national religion and the prohibition of laws that would restrict an individual from practicing his/her religion.
As with many parts of the US Constitution, the Framers were reacting to what they had seen in England, and how those actions in their home country had violated what they viewed as the Laws of Nature.
In 1527, King Henry VIII sought to annul his marriage to Catharine of Aragon because she was unable to bear him a son. Pope Clement VII refused, and in response, Henry forced Parliament to pass laws abolishing papal authority in England and establishing Henry, himself as head of the Church of England, which later became the Anglican Church. The net result was that the Monarch was not only the civil leader, but he was also the religious leader.
At the time when the Constitution was being written, taxes were imposed on the English citizenry to support the Anglican Church.
Bishops in the Anglican Church were given automatic seats in the House of Lords (27 seats). Those 27 seats in the House of Lords are still, today, reserved for the senior bishops in the Anglican Church. The King was and still is the titular head of the Church and its “supreme governor”. The Archbishop of Canterbury is the chief cleric. These actions augmented the authority of the monarch to include both civil and moral matters.
The Framers wanted to ensure that no such national church be established in their concept of the new American Experiment.
And yet, today, we often hear from some political activists that the Framers wanted this to be a Judeo-Christian country.
They did not.
The moral principles of the Constitution stem from civil law not religious law. The Framers’ thinking was more influenced by Enlightenment writers like Voltaire, Rousseau, John Locke, David Hume, Adam Smith, and Immanuel Kant although many of the thoughts of those writers parallel those advanced by figures in the Bible.
We also hear today that there are certain other religions, like Islam, which should be restricted because they are an express danger to our culture, that those who practice that religion want to govern their communities through their own set of religious laws (Sharia), and that further, that they would like to impose those laws on everyone else. Perhaps we also want to prohibit Chasidic Jews from using Talmudic laws to run their communities, or Buddhists, or Taoists. The Framers envisioned a society governed not by a set of religious laws, but of civil laws, independent of individual sectarian religious influences.
The Amendment provides freedom FROM religion as above, but it also provides freedom OF religion. It does not allow for freedom just for any sect of Christianity; it places no restrictions on which religions are permitted. Here is a quote from Thomas Jefferson:
“The bill for establishing religious freedom, the principles of which had, to a certain degree, been enacted before, I had drawn in all the latitude of reason & right… and a singular proposition proved that it's protection of opinion was meant to be universal. … an amendment was proposed, by inserting the word "Jesus Christ," so that it should read "a departure from the plan of Jesus Christ, the holy author of our religion." The insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of it's protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination.”
Again, this concept is revolutionary and audacious in the most extreme sense. The Framers intended that the practices of ANY religion, even if it does not agree with yours, should be allowed; prohibitions on those practices SHALL NOT BE proscribed.
In the late 18th Century, Enlightenment thinkers like the Framers of the U.S. Constitution generally considered a “religion” to be a personal obligation owed to the Creator (God) and the natural laws attributed to him, those obligations and duties being superior to those arising from human relations. This view is far more personalized than what we normally attribute to organized religions.
Finally, we need to understand what the Framers understood about Christianity, and by implication, how those views tempered their understanding of “religion”. Again, in Jefferson’s own words:
“An amendment was proposed, by inserting the word "Jesus Christ," so that it should read ‘a departure from the plan of Jesus Christ, the holy author of our religion.’ The insertion was rejected by a great majority.”
Rejected? By a Great Majority? Why?
Jefferson, as most Enlightenment thinkers, rejected Christianity. He rejected the notion of the Trinity and Jesus’ divinity. He rejected Biblical miracles, the resurrection, the atonement, and original sin. But he did believe Jesus to have been a great moralist, teacher, and philosopher.
From James Madison:
“Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?”
Among the Founding Fathers, Jefferson, Franklin, Madison, Paine and Washington (including others), considered themselves “Deists”, not “Christians”. Jefferson created his own Bible by cutting out all of the passages that he considered miraculous, supernatural, or mythological. Thomas Paine criticized Christian “fables”. Among Enlightenment thinkers there was a general belief that God (an “intelligent designer”) created the universe, but that God does NOT intervene in one’s life. The universe is governed by Reason and the Laws of Nature, not by scripture or magical thinking.
When considering the words of the Declaration of Independence, you may note that they chose the words “endowed by their creator”, rather than “endowed by God.” This is the core of Enlightenment Deism.
The basis of the thinking about religion in the US Constitution is that there are immutable Natural Laws that can be understood through scientific investigation and thought, not through proclamations by anointed religious leaders.
There is no mention of the Bible in the US Constitution; no mention of God anywhere; no mention of religion except in this Amendment. The members of the Constitutional Congress rejected adding Jesus Christ to the Constitution or the Amendment. This is consistent with their actions during the debates about declaring independence. When a proposal was made to begin each day’s work with a prayer, that proposal was voted down.
To follow the pathways of the freedoms enumerated in the First Amendment is difficult. Freedom is not easy; it is far easier to erode those freedoms through regulation, than to protect them no matter how challenging that might be.
FREEDOM OF SPEECH AND PRESS
These two freedoms are linked. Not only are citizens given the absolute right to say what they want, but those rights are extended to others’ rights to print these opinions.
These freedoms are also reflections of restrictions in England.
- The Test & Corporation Acts barred “Dissenters” (non-Anglicans) from holding public office or University seats.
- Seditious Libel laws made it criminal to criticize the government or officials under the logic that doing so lowers public trust. “The greater the truth, the greater the libel”, was the logic that supported these laws whether the criticism was true or not.
- Post-Publication libel laws allowed the English government to criminally prosecute writers AFTER their works were published, for sedition, blasphemy, or obscenity.
The Framers envisioned a new form of government, one in which educated gentlemen would debate and pass laws without the restrictions of an autocratic head of state. This vision certainly colored their choices. I am not sure that they would not be surprised by the level of education, the age, the sex, or the accomplishments of today’s electorate.
I imagine that in their minds, speech would be generally dignified and respectful, so there would be no need to restrict speech. What was most important to them, and therefore, what is enshrined in the First Amendment, is that those people (men) with opposing viewpoints would be expressly permitted to voice those positions without any threat of criminal repercussions. And printers who chose to publish and disseminate those thoughts would also be protected from prosecution by those who were in power, but who disagreed with those opinions.
These rights follow directly from the Declaration of Independence. The right to alter or abolish oppressive governments necessitates open expression and a free press. Included among the listed grievances in the Declaration of Independence is King George III having restricted colonial publications.
Today, the concept of freedom of speech and press is being questioned on both sides of the aisle. I hear arguments that this or that news outlet is too far left, or that these others are too far right. I hear that this newspaper is presenting “fake” news, while this other newspaper is just a mouthpiece for the government. Aggregation of print media, broadcast media, and social media into larger and larger syndicates reduces the number of voices being heard and the range of information being distributed. In an era of unprecedented quantities of material being produced, there seems to be a decreasing compendium of topics discussed. The radio you listen to, the cable channel you watch, the social media you follow, and the print publications you subscribe to are increasingly giving you the same stories over and over again. The information buffet no longer has 100 dishes; it only has a dozen. You can fill yourself up as well as before, but your diet is far more constrained.
To follow the pathways of the freedoms enumerated in the First Amendment is difficult. Freedom is not easy; it is far easier to erode those freedoms through regulation, than to protect them no matter how demanding that might be.
PEACEFUL ASSEMBLY AND REDRESS OF GRIEVANCES
The final group of freedoms enshrine the rights of citizens to gather in crowds and to appeal for their positions to be adopted by the government.
Once again, the Framers were reacting to what they had seen in England.
The Riot Act of 1714 allowed English authorities to declare groups of 12 people or more, unlawful; and it provided that deadly force could be used against them if they did not disperse. Other laws restricted worker “combinations” (unions). The net result was that there was effectively no freedom to meet in groups, especially for political purposes.
The concept that large groups could gather together, even directly outside government buildings and petition the government to address their concerns was a radical and unprecedented concept.
Today we hear attempts to categorize gatherings as things that need to be controlled or addressed. Whether it was the Jan. 6 demonstrations outside the US Capitol, the BLM marches, the demonstrations outside party conventions, Nazi marches, Pro-Palestinian protests, Gay Pride, or others that you may find fault with, many of us would like to see restrictions on time, place, and message, or to have the groups that sponsor these marches investigated by the government. The concept of the First Amendment is that ALL of these marches need to be allowed; once you begin to restrict who can gather, what they can say, what they can demand of their leaders, and where they can express those views, you begin to allow for the elimination of all protests. (Just to be clear, I am not talking about violence as part of or as a consequence of these protests. Violence is a separate crime and those who commit it should be prosecuted.)
We see in Minnesota today, how these freedoms are debated. Are protests against the government protected? What constitutes a violation of peaceful assembly? Does impeding governmental agents from doing their assigned actions constitute peaceful assembly? Where do the freedoms of assembly and petitioning for redress of grievances end and insurrection begin? What do we understand to be the meaning of the First Amendment’s protections?
To follow the pathways of the freedoms enumerated in the First Amendment is difficult. Freedom is not easy; it is far easier to erode those freedoms through regulation, than to protect them no matter how disquieting that might be.
“Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from - not provided by - the State.” Clarence Thomas.