The rights of the First Amendment cannot be considered the most important because they come first; they were proceeded by freedoms in the main body of the Constitution. But perhaps we still should regard the First Amendment rights as the most important in the Bill of Rights because, of course, they come before all the other ones in those ten amendments. That placement, however, was not the intention of those who drafted these provisions. The First Amendment rights come first not because of the drafters’ design but because of a historical happenstance.
The original Congress passed twelve, not ten amendments, by the required two-thirds majority of each House. These proposals were submitted to the states, but the requisite three-quarters of the states only ratified ten of the twelve, and those ten, the Bill of Rights, went into effect December 15, 1791. The two that were not adopted were the first two provisions passed by Congress, and not surprisingly, were labeled by Congress as the First and Second Amendments. What is now our First Amendment was labeled the Third Amendment. Indeed, well into the nineteenth century courts referred to the amendments by the numbers Congress used, and early judges wrote about our First Amendment as the Third Amendment.
The congressional framers of our Bill of Rights did not place our First Amendment rights first. And there is nothing to indicate that the states somehow concluded that the Third Amendment, as it came to them, contained the most important rights and consequently refused to ratify the first two proposals to bump that Third Amendment to the head of the queue. It is a mere fortuity that the protections in our First Amendment come first in the additions to the main body of the Constitution, and no importance should be accorded its placement. The notion that our country’s founders regarded First Amendment protections as the most important because they placed them first in the Bill of Rights is revisionist history.
On the other hand, while the First Amendment’s placement does not indicate the importance of its protections, its rights are foundational to what we would consider a “free” society. That is not true for much of what is in the rest of the Bill of Rights. Many of its provisions are America-specific. We have them but other countries have not considered them necessary for freedom. Most nations do not have the constitutional equivalent of our Third Amendment, which restricts the quartering of soldiers in homes. Many free societies have justice systems that do not rely on juries as we do. Most countries do not have in their constitutions the right to keep and bear arms. Indeed, our overall structure of government mandated by the Constitution with a President selected by an electoral college, a Congress, and separation of powers has not been deemed necessary for many free societies.
Free nations do not need all of what is in our Constitution, but it is hard to imagine a country we would consider free that did not have free speech and a free press. We may not think about the ability to assemble as much as speech and press, but people need to be able to come together for many reasons: comradeship, grieving, exchanging ideas, protestation, worship, laughter, dinner, and much, much more. Without a right to assemble peaceably, a society would not be free. And a society is not free if governmental communication only goes one way, from the government to the people. In a free society, the government is the instrument of those it governs. Freedom requires citizens and others to be able to tell the government of perceived problems and improvements. Whether we label this the right to petition the government or something else, it is essential.
But when Education Secretary DeVos and Attorney General Gonzalez were referring to the primacy of the First Amendment, they were not drawing attention to speech, press, assembly, and petition rights, guarantees that tend to complicate the lives of government officials. (Right now, I am looking at you, Mike Pompeo.) Instead, they were stressing the importance of the free exercise clause, a guarantee that may not be even needed when other First Amendment rights are preserved. When there is freedom of speech, a person can preach, pray, and proselytize. With freedom of the press, Bibles and Korans can be printed as can religious tracts of every sort. With a right of assembly, people can come together to worship, hear sermons and homilies, and join together in singing and praying. The provisions of the First Amendment that generally guarantee a free society also guarantee freedom of religion. Seventeenth century England had criminalized Quaker services. Even without the free exercise clause, that could not happen in America with free speech, a free press, and the right to assemble.
(continued February 10)