“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.” The First Amendment to the Constitution of the United States of America.
Within the next two months, the Supreme Court term will end. The Court will render all its decisions for the pending cases. The most anticipated, of course, concerns abortion, but many other important opinions will be handed down, including some about religion.
The religious cases will not get as much publicity as the abortion decision, but they will shape the country’s future in important ways. Before they come, I thought I would revisit the First Amendment, which contains what are often called the Establishment and Free Exercise clauses. A popular misconception is that the rights in the First Amendment were considered the most important ones by our founders because they come first in the Bill of Rights.
For example, Trump’s Secretary of Education Betsy DeVos said in an op-ed piece: “There’s a reason why the First Amendment comes first. Our country was founded upon the ‘first freedoms’ it protects. The freedom to express ourselves — through speech, through the press, through assembly, through petition and through faith—defines what it means to be American.”
Her statement seems to say something learned about our country, and surely First Amendment rights are important, but can her words be profound when they misapprehend and misrepresent history? DeVos says the collection of First Amendment rights “defines what it means to be an American.” DeVos should remember the old story in which the teacher asked, “Who was the first man?” Glen shouted out, “George Washington.” Miss Wilson responded, “What about Adam?” Glen, showing disappointment in his teacher, said, “Well, if you are going to count foreigners.”
America is not alone in what we label First Amendment rights. Citizens of many countries have the right to express themselves. If that right defines what it means to be an American, many foreigners must then be American.
Perhaps what DeVos really meant to say is that we would not be Americans without these guarantees, but they do not define what it means to be an American. Happily, we are not the only people in this world with such rights. (The Democracy Index has scores for civil liberties and about twenty countries are ranked higher than the U.S.)
DeVos made another point. These are our most important rights, she says, because the “First Amendment comes first.” Alberto Gonzalez, Attorney General for George W. Bush, said something similar years earlier, stating that religious freedom is the country’s first freedom because our founders saw fit to place it first in the Bill of Rights. We should give primacy to First Amendment rights because they come first, he said, and following that logic, we should give primacy to the religious provisions because they are the first of the First Amendment. (The First Liberty Institute, which litigates religious cases, does not on its website explain its name, but I presume the name comes from similar reasoning.) It all seems so obvious that a third grader using vouchers could follow the reasoning. But this elementary school reasoning is misleading and historically inaccurate.
The rights of the First Amendment don’t come first in the Constitution. They come after the seven articles of the Constitution that were drafted in 1787; the initial amendments were drafted in 1789 and went into effect in December 1791. Our Constitution granted rights before the Bill of Rights existed, and if rights are to be measured by their placement, then these original freedoms coming years before the First Amendment must be more important than the religious and speech provisions.
For example, Section 9 of Article I of the Constitution prohibits the suspension of habeas corpus except when a rebellion or invasion may require it. The next paragraph prohibits a bill of attainder or an ex post facto law. The next Section 9 provision gives another right: No direct taxation unless it is based on the census. This was an important right until it wasn’t a right. The Sixteenth Amendment, ratified in 1913, wiped out the no-direct-taxation provision by explicitly authorizing an income tax. Our rights, it turns out, are not immutable.
Section 9 contains two other provisions that we seldom think about but were truly essential foundational rights for this nation, because without them we would not be one country: “No Tax or Duty shall be laid on Articles exported from any State. No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one state, be obliged to enter, clear, or pay Duties in another.” We are welded into one entity because goods and transport can freely travel among the states. Without that, we would only be a collection of fifty fiefdoms.
The founders also placed important rights in Article III, which provides a narrow definition of treason and requires “the Testimony of two Witnesses to the same overt Act, or on Confession in open court.” It also eliminated punishments for treason that had existed in Europe. Finally, Article III, Section 2 guarantees jury trials for crimes. (If the importance of a right is measured not by its placement in the Constitution, but by the frequency of its protection, then juries are the most important constitutional right since juries are guaranteed not only in Article III but also in the Fifth, Sixth, and Seventh Amendments.) In other words, First Amendment rights should not be given primacy because they come first; they don’t.
While the First Amendment’s placement does not indicate the preeminence 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.
(To be continued)