First and Foremost

The 1st Amendment to our Constitution packs a lot of punch into relatively few words, doing its best to define what really makes America different from previous attempts at a free state:

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.

It is interesting to compare the 1st Amendment that was ratified (written above) with what James Madison originally drafted:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.

There is almost no recorded information about whatever debate led to the more concise version that was ratified, but a couple of key things were stricken during that process. First, “full and equal rights of conscience”. What did this mean? It was written in a way that suggests it tied to the clause on religion – perhaps it was broadening the idea to general morality? That would have made it at least a little easier to apply it to agnostics and atheists that nonetheless have a moral code behind their conscience.

The second interesting thing to note is that the freedom of assembly was originally not tied directly to the right to petition the Government for redress of grievances. The way Madison wrote it, those two items were separated by a semicolon, which generally is a stronger indicator of actual separation than, say, a measly comma. It sounds trivial, but the interpretation of our Constitutions hinges on these types of subtleties.

The entire Constitution leverages the many successes and lessons learned from human history, but the text about religion in the 1st Amendment probably reaches farther back than any other. Religion and power have been difficult to untwine for a very long time. For Europe in particular, the power wielded by the Vatican played a major role in who came to power elsewhere, and this among many other things led to the rise of Protestantism in its many flavors. For the British, that in turn led to the Church of England, which of course was imposed on the colonies. The colonies themselves had numerous different faiths, and some of these came to power in their own right on a regional basis. In all cases, religion was imposed by some level of government, including the payment of taxes to support whatever religion locally held sway, even if the citizens did not subscribe to that particular religion. This is why the 1st Amendment starts by preventing the Government from establishing a religion, and immediately levels the field with the counterpart statement about the right to practice the religion of one’s choice (assuming, of course, that religion doesn’t tell you to break laws or infringe on other people’s Constitutional rights).

We often hear about the “separation of church and state”; Thomas Jefferson used the words “a wall of separation between Church & State” – so “building a wall” meant something rather different in those days. Most court decisions around this concept have adhered to the “Lemon test”, which refers to the decision of Lemon v. Kurtzman in 1971. The Lemon test states that the Government is violating the 1st Amendment if:

  1. the statute (or practice) lacked a secular purpose;
  2. its principle or primary effect advanced or inhibited religion; or
  3. it fostered an excessive government entanglement with religion.

I don’t know about you, but I’m not sure the Lemon test does anything more than add words. And even with those extra words, the Court indicated that absolute separation is simply not possible, so there is always room for interpretation depending on the situation. Which of course can be exploited in either direction.

Freedom of speech, one of our most cherished rights, was trampled less than a decade after it was etched into the Constitution. The most infamous example is the collection of Alien and Sedition Acts pushed forward by John Adams and the Federalists, which essentially criminalized criticism of the Government. The pretense was that the criticisms were false, but of course it would be the Government who determined that. This all came from a paranoia that the French Revolution would lead to a new American Revolution and throw the nation into anarchy. When Jefferson became President, he wasted little time before overturning these Acts, but paranoia has pushed the envelope more than once since then. The Espionage Act of 1917 led to the conviction of a man who published leaflets urging resistance to the draft, and the Court upheld that conviction. And I’m sure you can see some similarities between what led to those older Acts and the sentiment brewing in Washington today. It bears repeating: eternal vigilance.

Freedom of speech has had one significantly negative consequence in American politics: the ability to speak with dollars. The 1st Amendment has been invoked multiple times to prevent limitations on the amount of money an entity can contribute to a political campaign. And since money determines how many ads you run, how big your operation for recruiting volunteers can be, how broad and effective your social media campaign is, and frankly your perceived importance which impacts your ability to get on talk shows, well,… this particular freedom is restricted to a fairly small fraction of our populace.

Freedom of the press is a natural extension of freedom of speech, with the underlying notion that the press has the freedom to speak to us about what is true, regardless of what any particular politician or political party might say. But the framers of the Constitution may have missed something here – perhaps it would have been good to say that not only should we not have a national religion; we should also not have a national press. This blog entry is already too long, so I’ll leave it at that.

I already mentioned the right to peaceably assemble in the last post on the 2nd Amendment – this one may be under the most assault right now, literally and figuratively, with the ever-increasing rash of mass shootings in the United States. Of course, the 1st Amendment only says that the Government can’t infringe on our right to assemble. But when half the Government is beholden to an organization that won’t let us do anything meaningful about the problem, isn’t the Government complicit?

I think the Founding Fathers would have had a vigorous debate about that.

Freedom always has cracks.

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