6/1/2020
Congress Shall Make No Law . . .
The Constitutional, Historical, and Current Meaning of the First Amendment
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What We’ll Do In This Course • Day 1: Philosophical origins of the First Amendment • Day 2: 200+ years of Supreme Court Cases • Day 3: Current First Amendment Issues
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech, or of the press; or the right of the people peaceable to assembly, and to petition the Government for a redress of grievances.
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What Did These Words Mean to the People Who Wrote Them?
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The Origins of the First Amendment – The European Enlightenment – English and Colonial Common Law and Statutes – How it came to be included in the Bill of Rights appended to the Constitution of 1787
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Origins of the First Amendment:
The European Enlightenment Karen McPherson June 2020 18
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The Enlightenment
– The “Age of Reason” –“Long” 18th century (1688-1815) –Reason, liberty, progress, religious tolerance
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Link to Enlightenment Video that I couldn’t play today
–https://www.youtube.com/watch?v= J0B28_gwj0M –This a You-Tube link. The video clip is about 15 minutes long.
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Religious Tolerance “Separation of Church and State”
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Bacon Newton Locke
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Francis Bacon (1521-1626) – The Advancement of Learning (1605) – Novum Organum Scientiarum (1620) – Father of the Scientific method
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Isaac Newton (1642-1727 –Philosophiae Naturalis Principia Mathematica – Newton’s 3 laws of motion – Father of Calculus (with Gottfried Leibniz)
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John Locke (1632-1704) – Two Treatises of Government (1689) – A Letter Concerning Toleration (1689) – Essay Concerning Human Understanding (1690) – Reason, Empiricism, “Tabula rasa” – Father of Modern liberalism
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Liberty
Separation of Church and State
Reason
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The City Flag of Williamsburg, VA.
–Adopted on October 17, 1976 –Derived from 1699 Coat of Arms of Francis Nicholson
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Artisan Orderly Town Plan 33and Public Sun of the Man Enlightenment Three Pillars of the Virtute Et Labore town – Florent Respublicae“ Hospital, College, (States flourish Government through virtue and toil.) Surrounding Plantations
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Precursors to the First Amendment:
English and Colonial Common Law and Statutes
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Year Event 1215 Magna Carta 1606 Virginia Charter (Protects English Liberties) 1628 English Petition of Right 1639 Maryland Act for English Liberties 1641 Massachusetts Body of Liberties 1649 Maryland Toleration Act 1676 Fundamental Laws of New Jersey 1682 William Penn’s Frame of Government for Pennsylvania 1683 New York Charter of Liberties and Privileges 1683 Pennsylvania Frame of Government 1689 English Bill of Rights 1691 New York Declaration of Rights 1701 Pennsylvania Charter of Privileges 1735 John Peter Zenger Case 38 38
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Year Event 1765 Declaration of Rights and Grievance of Stamp Act Congress 1772 Boston’s Rights of the Colonies and A List of Infringements and Violations of Rights 1774 Declaration of Resolves of First Continental Congress 1776 Declaration of Independence 1776 Virginia Declaration of Rights 1776 Bill of Rights of Pennsylvania, Delaware, Maryland, and Vermont 1780 Massachusetts Declaration of Rights 1787 Northwest Ordinance 1788 Alexander Hamilton writes Federalist 84 and 85 1789 Constitution Ratified 1791 Bill of Rights Ratified 1798 Alien and Sedition Acts 1798 Virginia and Kentucky Resolutions 39 39
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Precursors to the First Amendment:
Its Inclusion in the Constitution Karen McPherson June 2020 41
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech, or of the press; or the right of the people peaceable to assembly, and to petition the Government for a redress of grievances.
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STATE RATIFICATION VOTE YAY/NAY Delaware December 7, 1787 30-0 Pennsylvania December 12, 1787 46-23 New Jersey December 18, 1787 38-0 Georgia December 31, 1787 26-0 Connecticut January 8, 1788 128-40 Massachusetts February 6, 1788 187-168* Maryland April 26, 1788 63-11 South Carolina May 26, 1788 149-73 New Hampshire June 21, 1788 47-47* Virginia June 29, 1788 89-79* New York July 26, 1788 30-27* North Carolina November 21, 1788 194-77* * With Rhode Island May 29, 1790 34-32* Amendments43 43
What Was the “Original Intent” of the Framers?
– Are rights pre- – Or are they existing, created by a universal, specific set of fundamental circumstances? propositions waiting to be identified?
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– The Framers had many disagreements about the content of the rights they were examining.
– The rights that are at the center of modern American law and politics are more the products of the 19th and 20th centuries that of the 18th century
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What was the “Original Intent” of the Framers?
– We know little about what the state legislatures thought about the meaning of the various amendments – Freedom of religion was probably the most important of First Amendment rights to the Framers of the Constitution – At the Constitutional Convention, the only real focus on speech and the press was on the “Speech and Debate” freedoms of legislators
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What Did the Framers Mean By “Freedom of Religion?”
– Madison’s original draft of the First Amendment said that no one’s civil rights should 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.” – His original draft of the First amendment religion clauses was clearer than final draft 47 47
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What Did the Framers Mean By “Freedom of Religion?”
–“The [religion] clauses of the First Amendment cannot be taken literally. They do not mean what they say nor say what the Framers meant.” –Leonard Levy (20th century First Amendment scholar)
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What Did the Framers Mean By “Freedom of Religion?”
– Madison’s concern was not whether religion was a good thing but whether establishments of religion were good for religions, and “he decidedly thought not.” He did not believe that religion needed government support any more than government needed religious support.
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States that went for States with the the GOP in 2016 strongest religious base
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What Did the Framers Mean By “Freedom of Religion?” (continued)
– In “Memorial and Remonstrance against Religious Assessments” (1785) Madison argued that religion was not an “engine of civil society,’ that the establishment contemplated by the bill differed from the Inquisition “only in degree,” not in principle.
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What Did the Framers mean by “Freedom of Religion?”
– Madison thought that establishment violated freedom of religion, injured religion, corrupted government, and threatened public liberty – Madison never wrote or talked about “establishment of religion” but rather he spoke of “religious establishments” – as in institutions – a church, a church school. – The “no preference” arguments over government’s relationship with religion did not mean that government could aid all sects; they meant government could not aid religion at all 52 52
What Did the Framers mean by “Freedom of Religion?”
–The states ratified the Bill of Rights but left nothing to clarify the meaning of an establishment of religion. We have no debates, newspaper coverage, tracts, or personal correspondence that provide clues
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What Did the Framers Mean by Freedom of the Press?
–The printing press (late 15th century) created the first opportunity for information to be widespread –English common law sought to minimize the risk that the printing press might be used for purposes at odds with the states’
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What Did the Framers Mean by Freedom of the Press?
–John Milton (1640s) – Advocated competition of ideas for discernment of truth – “Let Truth and falsehood grapple”
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What Did the Framers Mean by Freedom of the Press?
– To the Framers, a free press involved only an absence of previous restraint – not a freedom from the consequences of what you printed – They did not embrace the 1735 Zenger principle that truth was a defense to charges of libel
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What Did the Framers Mean by Freedom of the Press?
– None of the first nine states to ratify the Constitution recommended an amendment guaranteeing freedom of speech or press. – 1792 - Virginia passed an “Act Against
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What Did the Framers Mean by Freedom of the Press?
– Leonard Levy: – “If the objective of the Revolution was to repudiate Blackstone’s exposition of the common-law restrictions on freedom on expression, – “how very strange that Americans of the revolutionary generation did not say so.”
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What Did the Framers Mean by Freedom of the Press?
– During the debate over the Bill of rights, Madison described freedom of the press as one of the “choicest” of the “great rights of mankind”. – But he said nothing in 1789 or earlier that revealed what he meant by a free press clause. – There is no evidence to prove for certain what the Framers had in mind about free press freedom. – There is no certainty about whether the Framers themselves knew what they had in mind. 60 60
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What Did the Framers Mean by Freedom of Speech?
– The only time it was mentioned was in the context of the Speech and Debate clause (Article I, Section 6, Clause 1): – “[F]or any Speech or Debate in either House,” Members of Congress (Members) “shall not be questioned in any other Place.” – No states demanded an amendment calling for individual free speech protections. 61 61
So -- What was the “Original Intent” of the Framers?
– Religion – We kind of know – Speech/Press – We know but no longer agree with their view – Assembly – No clue – Petition – No clue 62 62
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