“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.”
This is the text of what we know as the First Amendment to the US Constitution. It was passed as part of the “Bill of Rights” on December 15, 1791, just about three and half years AFTER the US Constitution was ratified. (The US Constitution was signed on Sept. 17, 1787, and ratified by the states on June 21, 1788.)
You may be surprised that there were originally 12 amendments signed and submitted to the states for ratification, but only 10 survived the ratification process.
I am reminded of the scene in Mel Brook’s comedy, “History of the World, Part 1”, in which Brooks, portraying Moses, comes down from Mt. Sinai with 3 stone tablets and says, “The Lord Jehovah has given unto you these 15” – at which point he drops one tablet which shatters on the ground. He then holds up the remaining two tablets and continues, “Ten! Ten Commandments for all to obey.”
“The Bill of Rights has 12, oops, 10 Amendments!”
By the way, did you ever wonder what the five commandments were on the dropped tablet?
- Thou shalt not pass (maybe gas?)
- Thou shalt not make people laugh
- Thou shalt not buy
- Thou shalt not stay
- Thou shalt not break
Madison numbered the proposed amendments 1 through 12.
The original First Amendment would have established a numerical value for the number of Representatives in the House. It would have provided that there be one Representative for each 30,000 people, with at least 1 member per state, and allowed the House to have a minimum of 100 members and to grow with the population. This First Amendment failed to be ratified.
The original Second Amendment would have prohibited Congress from giving themselves a pay raise, delaying any pay raise until the subsequent Congress. Although this failed in 1790, it was passed, 200 years later, in 1992, as the 27th Amendment.
With these two failures, the Third Proposed Amendment was passed and is the one we now know as the First Amendment, and with the remaining 9, they became the “Bill of Rights.”
I am writing this note to look at two aspects of the First Amendment.
Firstly, I think it is important to understand WHY the Framers were focused on these issues, specifically what they were reacting to in the laws in place at that time in England.
Secondly, I think it is equally important to understand how some political groups on both sides of the aisle today are attempting to twist these words to fit their own partisan agendas.
PARSING THE LANGUAGE
The first thing to note about the text of the First Amendment is the language and the punctuation, as they provide insight into the thinking behind the text.
“Congress SHALL MAKE NO LAW…”
The words “shall make no law” are extremely important. In the words of that time, “shall” meant “mandatory”. The use of the word indicates that there is no wiggle room here. The usage of the word “Shall” indicates a prohibition on actions that would oppose that order, such as in the Ten Commandments: “Thou shalt not…”.
During that time period the words “shall” and “will” had the equal definition: “mandatory”; but the word “shall” was used to refer to a group, while “will” was used for a single individual. An example would be “On Saturday we “shall” go to the concert, and Bill “will” perform.” The words “must” and “should” imply the necessity of performing an act or action NOW, while “shall” and “will” refer to actions in the future.
The second thing to note is the positioning of the commas and semi-colons.
Commas are used to group things together; semi-colons are used to distinguish groups.
So, there are three groups of things for which laws are to be prohibited from Congressional acts:
- The establishment of religion or the free exercise of it.
- The freedom of speech or the press.
- The right of free assembly and the right to petition the government for redress of grievances.
The audacity of such a simple text is mind-boggling. The concept that government is absolutely prohibited from limiting these freedoms was almost inconceivable at the time and remains so today. The Amendment does not constrict these Freedoms; it does not say that there is freedom of any religion as long as it arises from Judeo-Christian constructs; it does not say that speech should be free unless we don’t like it or is “dangerous” or offends someone; it does not say that assembly is restricted as to size, date, or location.
This is terrifyingly simple and all-encompassing, and it stood, unchallenged, until the 20th Century when the courts began to erode these rights through the arguments that all rights need to be regulated.
The first limit on free speech occurred in 1919 when the Supreme Court in Schenck v. U.S. introduced the concept of “clear and present danger” as a test allowing for the suppression of speech that might cause damage.
You may find it interesting that the case itself focused on two socialists, Charles Schenck and Elizabeth Baer who, during WW I distributed leaflets declaring that the draft violated the 13th Amendment prohibiting involuntary servitude. This argument is that citizens are not consulted prior to being drafted, cannot avoid conscription, and are exposed to life-threatening service without their consent. The leaflets urged the public to disobey the draft, but only by peaceful means. Schenck was charged with conspiracy to violate the Espionage act of 1917 by attempting to cause insubordination in the military by obstructing recruitment.
After he was convicted, he appealed his conviction on the grounds of the free speech guarantees of the First Amendment. Writing for the majority, Justice Oliver Wendell Holmes famously said, “the most stringent protection of free speech would not protect a man in falsely shouting “fire” in a theatre and causing a panic…The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent.”
His “fire in the theatre” analogy is often used as a rationale for tempering the rights of free speech; but in context, the phrase is restricted to “circumstances of such a nature as to create a ‘clear and present danger’.
In 1942, in Chaplinsky v. New Hampshire, the court decided that “fighting words”, likely to provoke an immediate violent reaction can also be suppressed by law.
Courts have ruled that speech can be limited by how, when, and where it occurs as long as that restriction serves a significant government interest. This does not seem to be the intent of the Framers who were concerned about how government’s interest may suppress free speech. Today we might ask if speaking against tariffs threatens the government’s interest in using tariffs for the purpose of national security, or if speaking for Palestinian rights threatens the government’s foreign policy interests, or if speaking for transgender rights violates the government’s interests in protecting women. These should be concerns for all Americans as the First Amendment is eroded under the rubric of regulation.
We might have some apprehension that any administration, Blue or Red, might use this argument to criminally enforce their partisan agendas by restricting speech that runs counter to their “significant government interest.” Although the courts have created boundaries for what constitutes “significant government interest”, an administration could still use this argument to suppress speech with the strategy of forcing the courts, over a significant period of time, and at large expense to the accused to enforce the law.
Other restrictions were allowed in the last 3 decades of the 20th Century pertaining to obscenity or symbolic acts like flag burning.
I find it interesting that it took over 100 years before we began to erode the absolutes of the First Amendment. That may suggest that it took 3 generations before the initial commitments to these rights and the rationale behind them were forgotten.
In PART II of this note I will take some time to look at the Three Groups of freedoms enumerated in the First Amendment and try to understand the Framers’ understanding of those freedoms and how they may be becoming eroded today.
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
― George Orwell