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.
1 comment:
We have little pocket U.S.Constitutions. I keep one in the car. Several times on journey we have read it aloud. I haven't made the in depth study you embarked on here and unfortunately I don't retain, or least trust my retaining info as in days of old. So I will slowly read through what you have been pondering. Foundations are, well they are foundational, right?
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