Typical of these days, a Facebook meme was posted to condemn the President for what the meme-makers and their followers perceive as a violation of the Constitution. This has motivated me to learn more about the Bill of Rights, and the rest of the revisions to the Constitution. I intend to learn, and write, a little more about each one. Today I start with the first amendment.
“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.”
Before we begin, an interesting aside. Writing in Federalist Paper #84[i], Alexander Hamilton addressed the concerns of the interested parties in New York about the need to add a “Bill of Rights.” In his defense of the Constitution, as written, he was opposed to the entire concept that the rights of the individual should be enumerated. He said in his argument, “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.” As history has shown; the clear limitations on the power of the state, and specific protections of the individual have proven to be exceptionally critical to our nation.
I believe it’s safe to assume the first ten amendments, collectively known as the “Bill of Rights” is not a hodge-podge of random ideas, but rather a collectively approved list of the concerns of the various states addressed in order of most to least important. Therefore, this first amendment addresses the concerns of the states regarding the limitations on establishment a state religion, (e.g. Church of England), from which so many of the original settlers to the east coast fled, while also addressing the freedom of ideas through the press and the restrictions to the press, and the people to seek redress from the King, observed under English rule.
For the rest of this post I will draw from the Cornell University Law School discussion on the amendment.[ii]
Overview: In its discussion on the 1st Amendment, Cornell notes there are two protections of religion, as well as safeguards for individual speech and the press, in addition to the right of the individual to seek redress of a grievance. They also point out that the protections of speech for both the individual and the press are not unlimited and universal.
Protection of Religion: The two safeguards noted are the establishment clause,[iii] and the free exercise clause. We hear much in the news about the establishment clause as it is used to challenge government actions that favor one religion or even reflect support of religion over non-religion. I would think this will become an increasingly emotional battleground as the Muslim population grows and the concepts of Sharia law are introduced. The free exercise clause protects the individual from government interference, in most cases, in the practice of their religious beliefs. Obviously, there are some limitations. For example, a church advocating human sacrifice or cannibalism is probably going to be challenged as a threat to others.
Freedom of Speech: The Supreme court has held the government does have some limited rights to repress speech, but the burden seems to be on the government to prove harm, rather than on the individual to prove their rights. It is noted in the overview on the amendment and interesting paragraph on freedom of the press. I share it here: “Despite popular misunderstanding the right to freedom of the press guaranteed by the first amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.” Having listened to the outraged commentators of the broadcast media these past several months I am not sure they fully understand this. Also, this protection specifically addresses the Congress’ law making function, it does not seem to prevent a politician, say the President, from being critical of them.
Right to Assemble: This allows for the peaceful assembly of citizens for whatever reason they (the citizens) deem fit. Inherent in this is the right of association and belief. While there are safeguards to this, it does not prevent the government from protecting its citizens from groups involved in illegal activities.
Finally, the Right to Petition: This works with the right to assemble to enable the citizens to seek correction of a wrong through the courts or other reasonable processes, like an election.
Together, the safeguards of the 1st Amendment clearly limit government overreach and protect the individual. When the government, either the Executive, the Congress, or the Courts, or even one aspect of society attempt to use the Constitutional safeguards of the amendment to limit the rights of the individual we should all be concerned. Not just when someone we don’t like does it, or in the guise of not hurting someone’s feelings, or recognizing one group over another.