An Examination of the Bill of Rights -- The First Amendment

The Federalist Papers where the means in which proponents of the proposed Constitution of the United States of America, argued, vetted, and ultimately; via a Free Press; disseminated the ideals of a Republic and federal system of government, to the People of the various States of the time.

The premise behind the volume of writings were to highlight any concerns and ultimately; quell any worries, to clarify misconceptions, and ultimately to promote proposed the newly proposed Law of the Land. The volume consists of 84 separate articles, written specifically and in address to concerns, of the various States (in particular, New York) and the People to agree upon the proposed constitution. At the time, the writers remained anonymous and wrote under the moniker Publius (as they will be known hereon.) Through time, we have learned that Publius were in fact three separate persons: James Madison, Alexander Hamilton and John Jay.

Publius' efforts expended great philosophy and wisdom to highlight how the newly proposed Constitution would effect the greatest amount of Liberty to the People, while establishing a new form of Government; Federalism. With great exhaustion, Publius highlighted nearly every aspect, countered every argument and eloquently explained why the Constitution was superior. Their writings however, were before the proposed and now ratified, Bill of Rights.

An examination of the Bill of Rights is needed, in which staunch defense thereof is provided with insight of the Federalist Papers and Publius, along with modern day examples of how such Rights have been abused. This is a series of posts that examine each of the Bills, in their own right, and how each has been implemented, abused, contorted, and under constant subterfuge at the hands of the very Government that is to respect them.

First Amendment states:
"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"

When you read it above, it is straight forward. Congress (the Federal Government), will not make any law that denies the People of practicing a religion (or none at all) -- nor will it ever establish a religion as an "official" one by "respecting one over the other.

This subject, under great contention in this nation, was expanded greatly when persons extracted a small portion of a larger statement made be Thomas Jefferson, in his letter to the Danbury Baptist. He wrote, in part that there is "a wall of separation between Church & State". What isn't widely known, is that this was a correspondence between Mr. Jefferson and the Danbury Baptist. Correspondence that greatly expands this narrow passage of Mr. Jefferson, into the real debate with regards to the First Amendment and religion thereof.

In their initial letter, they wrote that "Our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions...", they continue with expression on the legitimacy of Government by stating "civil government extends no further than to punish the man who works ill to his neighbors".

Where they were concerned, was regarding where religion lies in regard to inalienable rights. In which they write, "...what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen."

This is to what Thomas Jefferson replied to, in which he expressed them, and their concerns, that the State has no authority to dictate their religious beliefs. Since then, Mr. Jefferson's writings have been twisted to state he was establishing a wall in which the State can dictate a religion; when it is clear, as you read, that he was stating that the State itself, has no bearing upon a religious establishment.

Moving deeper into the First Amendment, we arrive upon the second clause, in which it is stated that "Congress...shall make no law...abridging the freedom of speech, or of the press..."

This clause was to ensure that the the People could speak freely and publish freely, any material they wish. It also puts forth that Congress cannot legislate the means of producing such speech; aka "the Press". Looking at the definition of the period of "the Press", it is evident that it meant the means of production and dissemination of speech, rather than the notion of some corp or ordained "priests" known as the media.

Wikipediaclaims that it is a "political right" and that it is "granted". That is wholly inaccurate because before there was Government, we could speak. We do not need Government to tell us, as babes, to learn to speak; as it is natural.

The very reason that James Madison included not only the protection of speech, but the means of which it may be published "the Press", gives weight that any means of which we are to express our thoughts, our dissent, our expressions, our political views; can never be subjected to the whimsical notion of Congress. It however does place great responsibility upon the speaker in which they express.

While the oft used phrase, "you cannot yell 'fire' in a crowded theater" is uttered in First Amendment arguments, it is disingenuous to the notion of Free Speech. You surely can yell "fire", but the responsibility of such speech is held to the crier. They are not held to the speech in which they uttered, but the consequences thereof. It should be known that if there were indeed a fire in a crowded theater, would you not want someone to cry out that there is danger? Or would you feel better that they remain silent for fear of their speech?

Free speech naturally leads us to the last part of the First Amendment, in which it reads in part "Congress...shall make no law...abridging...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances""

This is the cornerstone of the First Amendment. It actively pushes back upon the Government and protects its very enemies, the People. The very people who will speak out against transgressions, who will petition the Government for their ills, assemble freely with like minded (or even non-like minded) individuals. It is the crux of our ability to be free, to seek out whom we wish to deal with. To make decisions freely, without fear of Government deciding that our dealings are dangerous to the State.

Ultimately, the First Amendment highlights very individualistic ideals; we can worship without the State deciding who we can or cannot worship; we can speak freely and publish freely, without fear that the State will censor us; and lastly, we can associate with whomever we wish and even directly petition our Government in their acts in which we feel are transgressions.

The First Amendment is a Natural Amendment. We are all born with the freedom to express ourselves; may it be in words, faith, dissent or otherwise; regardless of what the State say

reply to post by ownbestenemy


OUTSTANDING

The one thing most people miss, or simply do not know, is that the Constitution does not "give" any rights, it only restricts the governments ability to limit the natural rights we already have...

Excellent expose' on your part here

A very well thought out post. Your examination of this subject is a welcome breath of fresh air.

reply to post by semperfortis


I wish it to be a starting point to examine the "what", the "why" and the "how". While it is my intent to be a part of a series, I want to focus on each, in their own right.

Thank you for your praise.

Post Script:

I also want to note, I welcome dissent and disagreement. That is how we further our knowledge.

reply to post by ownbestenemy


I just want to say thanks for this. People get very wrong ideas about the Constitution and Bill of Rights. I can't imagine how that happens; surely they must learn this stuff in school—right? Surely our schools wouldn't pervert their immature and impressionable little minds with the leftist propaganda that our government grants us these rights in the form of privileges? Right? Am I right?

To continue on, we need to see how the First Amendment was and is abused.

Nearly immediately, the very people who fought for the Constitution, sought to abuse it. President Adams was mired in a political battle with Alexander Hamilton and his Vice President of the time, Thomas Jefferson. Adams' supporters, the Federalist, sought to enact a law, the Alien and Sedition Acts (the Act), that made it illegal to assemble; regardless of intent; to the whims of the Congress and what they deem to be "threatening". This of course, flew straight in the face of the intent of not only the Constitution, but our natural Rights as laid forth in the First Amendment to assemble and redress our Government.

First, the Act was highly narrow.

That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies...

Sounds similar no? As we know from history, we exacted this same practice during WWII, even though the Supreme Court struck down this law. This law made no mention save liability due to origin. The legislation did not stop there though, it continued its assault upon the First Amendment.

That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States...then such person...shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

For uttering a word? Or even assist in uttering a word? You see, the Government, even when it was fought by the very people to establish such protections, will strive to protect itself and its powers.

This is but an example (the first) of how the Government will seek to destroy that which it created when that which it created turns upon it.

Just wanted to post and say thank you for this.

This thread is now bookmarked for future reference.

While Congress has not wholly honored the "Congress shall make no law..." clause of the First Amendment, they have left the chipping away of the meaning to the fallible Supreme Court. While the First Amendment weathered the first attack (see post above regarding a brief about the Alien and Sedition Acts), it has since be whittled down to narrowly defined carvings of itself -- in so much it would make anyone awestruck.

There are three main avenues in which the Government has attempted to silence its citizens, critics, commerce, political opponents: Legislation, Regulation, and Force.

First and foremost, any legislation that attempts to abridge freedom of speech; the means of which we publish that speech; our desire to practice (or not) a faith of our choice; if and with whom we assemble with; and lastly, chill political dissent; are unconstitutional. To get around the plain English of the Amendment, legislators needed a new weapon...an outside force in which they could legislate an unconstitutional law but then miraculously, get said legislation deemed "constitutional" -- enter the Supreme Court of the United States.

We have seen this tactic grow ever since Chief Justice Marshall found the Supreme Court's inherent ability of "judicial review". While there are merits to this understanding, with it, opened a new avenue in which the separate branches (Executive and Legislative) could weasel in legislation that is, on its face, in direct contradiction of the First Amendment. A prime example is the Bipartisan Campaign Finance Reform Act (BCFR - McCain-Fiengold Act).

This law, prior to it being challenged in Citizen United v. FCC, severely restricted all but two clauses of the First Amendment. It chilled speech, made it a crime to speak during certain times, a crime to publish during certain times, to redress government during a certain time. It was flat-out unconstitutional. Congress, knowing that they could legislate first and determine constitutionality later, because of complicit State Governments and a cynical public, the legislation would be in effect until otherwise shown to be unconstitutional; even though it was unconstitutional to begin with.

Congress knowingly violated one of their powers granted to them in Article I, Section 8, Clause 17, "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Further, the Executive also violated their powers granted when they executed the law; as the law violated the First Amendment and thus was not necessary and was surely not proper.

Legislators and the Executive have for too long, utilized this practice to chip away at the bulwark of freedom. By allowing the Supreme Court to utilize their practiced judicial review, without check or balance in return, legislation is deemed constitutional all while it is easily seen as unconstitutional until the Court says it is not.

Now that we see the role of Legislation and its chilling effect, we look to the growing bureaucratic state; with hundreds of entrenched agencies operating nearly on auto-pilot. While these agencies were created under legislation, they enjoy very large lateral movement within the prescribe legislation that gave them life. While the effects of unconstitutional legislation is dangerous, effects of bureaucratic chilling effects is more widespread and typically flies under the radar. The most recent and obvious example is the undertakings of the Internal Revenue Service and their attempts to chill and in some cases, deny the First Amendment to groups.

***PLEASE NOTE: I am not making this a partisan argument regarding if it was some conspiracy against anyone ***

By the very nature of a bureaucracy, the IRS operated freely to determine what it can and cannot do, while retaining deniability, even when it was indeed, unconstitutional. The very fact that a person, or group of persons, must seek permission and approval to speak is a travesty. This argument though, happens to involve a much larger notion that the People have allowed the Government to request such permission via the elusive "tax-exempt"; which in turn, places the First Amendment in a mired bind of red-tape.

Lastly, we have the chilling effect of force or threatened use of force. Reporters being investigated for reporting on the Government, free-speech zones, the Government bent on defining what a "journalist" is for its own benefit, etc, etc. This effect has the largest and widest chilling of speech to the People. For the most part, people tend to want to live by the Rule of Law, but when Government attaches force to legislation (that is unconstitutional) and allows the bureaucracy to dictate the execution of that law -- the People will comply in most cases. Force or threatened force creates an aura of hush-hush, back-room speak and ultimately no speech at all.

reply to post by ownbestenemy


Much could be (and probably has been) written on the subject of the Supreme Court's arrogation to itself the exclusive right to determine Constitutionality. I believe it was a serious mistake for Jefferson/Madison to have left it at that.

In any case, at this late date it's much more difficult to argue that laws are either Constitutional or Unconstitutional on their face, and that it's up to the individual to make the determination to comply or not comply. Over time the consequences have become much more dire.

I'd be interested in your further thoughts on the Supreme Court. Maybe after you're done with the Bill of Rights....?

Ex_CT2
In any case, at this late date it's much more difficult to argue that laws are either Constitutional or Unconstitutional on their face, and that it's up to the individual to make the determination to comply or not comply. Over time the consequences have become much more dire.

I agree and that is seen in the resurgence of the notion of nullification. It is also why the State continually argues that it is not a valid motion. Of course, Federalist Paper #27, 33 and 78 say otherwise. Those actually speak to the above post of mine in regards to the Legislature and its notion that it is the Supreme Court and only the Supreme Court who can declare legislation void and/or unconstitutional.

Hamilton writes:
"No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

If we are to believe the above, it then does become an individual choice to ignore unconstitutional legislation. The Government, knowing I believe, that this would be a valid argument against its powers -- has allowed the Judiciary to be the only arbiter to things constitutional and thus securing the pathways of carving exceptions in regards to the powers granted to themselves. For instance: The Interstate Highway Act and the "Commerce Clause" -- by blackmail, the Government can dictate state-law under threat of force (deny States monies).

I'd be interested in your further thoughts on the Supreme Court. Maybe after you're done with the Bill of Rights....?

That would be fun.

There is something people often miss, and it has to due with the use of language over time.

The "bill of rights" and the "constitution' do not GIVE people rights. They are outlines for rights that humans, at that time, had in their possession inherently (we still have them but we gave them away). All that was done was a codification which should have worked to deter a government from determining those rights were the governments to GIVE or to take away.

Then the language changed. Nearly all people in the US are under the impression that the "bill of rights" GIVES them freedom of speech, religion etc. They are sure that without that "bill of rights" they would no longer have those rights because it is a piece of paper that gives them things that are not really about words on paper.

The problem here is the switch. Now that the government has effectively convinced people they are GIVEN rights, the government can simply take the rights away with regulations. Easy.

Now, it gets even worse. Folks quietly accepted the notion that the rights given to them is in fact "permission" and as such, "permission" is both granted and taken away. You are "permitted" to speech or religious views or protecting yourself by the government and of course he who permits can also deny.

Rights are rights. We have them, UNLESS we give them away in order to get permission. Once given away in favor of permission they are lost forever.

crankyoldman
There is something people often miss, and it has to due with the use of language over time.

The "bill of rights" and the "constitution' do not GIVE people rights. They are outlines for rights that humans, at that time, had in their possession inherently (we still have them but we gave them away). All that was done was a codification which should have worked to deter a government from determining those rights were the governments to GIVE or to take away.

That is an excellent point. Take in consideration Madison's initial resistance to including "Bills of Rights". In a letter to Thomas Jefferson, Madison highlights the very reason that such "Bills" are redundant and dangerous over time.

My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration.

Here is points out the dangers, that by simply enumerating certain Rights, might give appearance that those are the only Rights held.

He continued on, by listing why he never thought they should be included, to that, the list was straight-forward: The Constitution itself only granted certain and specific powers, of which, did not include to disparage people of their Natural Rights.

... the rights in question are reserved by the manner in which the federal powers are granted.

Freedom of Speech, Religion, Right to a trial, to be secure in your own persons and effects, etc, etc...no where in the Constitution is such authority granted to the Federal Government. It was that thinking in which Madison held to. That which was not granted, cannot be lawful.

... a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power.

That is where we are at today.

... the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.

Take away the jealousy (this occurred later with very poignant amendments such as the 16th and 17th; along with the 13th and 14th.

Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.

Sound familiar? It should as that is exactly what this Republic has been reduced to.

Bravo sir for your astute understanding.

ownbestenemy

crankyoldman
There is something people often miss, and it has to due with the use of language over time.

The "bill of rights" and the "constitution' do not GIVE people rights. They are outlines for rights that humans, at that time, had in their possession inherently (we still have them but we gave them away). All that was done was a codification which should have worked to deter a government from determining those rights were the governments to GIVE or to take away.

That is an excellent point. Take in consideration Madison's initial resistance to including "Bills of Rights". In a letter to Thomas Jefferson, Madison highlights the very reason that such "Bills" are redundant and dangerous over time.

My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration.

Here is points out the dangers, that by simply enumerating certain Rights, might give appearance that those are the only Rights held.

He continued on, by listing why he never thought they should be included, to that, the list was straight-forward: The Constitution itself only granted certain and specific powers, of which, did not include to disparage people of their Natural Rights.

... the rights in question are reserved by the manner in which the federal powers are granted.

Freedom of Speech, Religion, Right to a trial, to be secure in your own persons and effects, etc, etc...no where in the Constitution is such authority granted to the Federal Government. It was that thinking in which Madison held to. That which was not granted, cannot be lawful.

... a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power.

That is where we are at today.

... the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.

Take away the jealousy (this occurred later with very poignant amendments such as the 16th and 17th; along with the 13th and 14th.

Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.

Sound familiar? It should as that is exactly what this Republic has been reduced to.

Bravo sir for your astute understanding.

So, assuming Madison figured it was painfully obvious to those alive at the time that they were free, but, governments were indeed the entity that encroached on that. It would seem he figured that it was so obvious that it didn't need to even be said. But they did...

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

This means to me the most important part of this entire contract is the sentences above and NOTHING else is relevant. Yet, we find, 240 years later that with enough manipulation folks will agree that not only are those TRUTHS (not facts) are not self evident but that they are "given" to them by the government.

Biggest face palm ever. Tragic.