Posted on by rjonakait

The First Was the Third

“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.

The email came from Kelly Shackelford, Esq., the President, CEO & Chief Counsel of First Liberty Institute, an organization that advocates and litigates for what it sees as religious liberty. Shackelford said, “Our Founding Fathers always intended for religious liberty to be our nation’s foundation. It’s why they made religious freedom our First Freedom.” One can argue with that first statement. At least in the formal sense, those founding fathers (as well as their fellow countrymen) were not particularly religious. One can, however, not argue with the second statement. It is flat wrong. The founding fathers, at least in our founding documents, did not make religious freedom our first freedom.

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. Since the religion clauses initiate the First Amendment, they are assumed to be the most essential rights among those collected in the initial amendment.  Shackelford is not alone in this misconception. For example, Trump’s Secretary of Education in his first administration, Betsy DeVos (whatever happened to her?), 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.”  Alberto Gonzalez, Attorney General under 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 continuing that logic, we should give primacy to the religious provisions because they are the first of the First Amendment. 

 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. Moreover, the initial amendments were drafted in 1789 and didn’t go into effect until December 1791. Our Constitution granted plenty of 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 prohibits the suspension of habeas corpus except when a rebellion or invasion may require it. The subsequent paragraph prohibits a bill of attainder (a legislative act that declares a person or group of people guilty of a crime and imposes punishment without a trial) or an ex post facto law (one that retroactively changes the legal consequences of an action taken before the law’s enactment). The next Section 9 provision gives yet another right: No direct taxation that is not based on the census. This was an important right until it wasn’t. 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 this provision 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 eliminates 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 in the Fifth, Sixth, and Seventh Amendments as well.) In other words, First Amendment rights should not be given primacy because they come first; they don’t.

First Amendment rights, however, come first in the Bill of Rights, and surely that indicates our founding fathers saw First Amendment rights as having primacy. Wrong again. In fact those founders did not intend for the First Amendment to be first.

The inaugural Congress submitted twelve amendments to the states, and the First Amendment was, at that time, the Third Amendment. The states in the eighteenth century, however, did not ratify the first two proposals, and the Third became the First. But, you ask, what about the two proposed amendments that were not ratified with the Bill of Rights? Each is an interesting story providing several lessons.

The first proposal, passed by a two-thirds majority of both houses of Congress, said that after the initial census, “there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which, the proportion shall be so regulated by Congress that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.”

Got that? The Constitution mandated that the original House of Representatives have 65 members, and after the first census, it grew to 105. It continued to grow but was capped in the early twentieth century at 435 members where it now stands. But what if that initial proposal had been ratified? (And it almost was, falling one state short in 1792.) Its meaning has been debated, but since that proposed amendment did not take effect, we don’t have an authoritative reading. Some scholars, however, have maintained that the unclear language would require a House of Representatives today with as few as 800 and as many as 5,000 Representatives. It is fortuitous that the first proposed amendment was not ratified, and we should learn that those early constitutional drafters like James Madison and his fellows were not superior geniuses with accurate crystal balls.

The second proposed amendment that did not get adopted with the original Bill of Rights reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Here the language and purpose are clear. Our representatives should not be able to raise (or lower, ha ha) their pay until the voters have had the chance to (re)consider those who will receive the remunerative change. Clear, and to the real constitutional nerd, the language is recognizable; it is the text of the Twenty-Seventh Amendment, the last to have been adopted.

Say what? Yes, it’s true. The proposed second amendment was largely forgotten after it failed to be ratified in the 1790s, but in 1982, Gregory Watson, a University of Texas sophomore, wrote a political science paper contending that the old proposal could still be ratified since it had no time limit for ratification. His essay received a “C.” His grader thought Watson’s thesis was farfetched, but Watson set out to show up his teachers. He lobbied state legislatures to adopt the proposed amendment and met with success. States ratified what was once labeled the Second Amendment, and the amendment was officially ratified on May 7, 1992, as the Twenty-Seventh Amendment. A proposal submitted by Congress to the states in 1789 became part of the Constitution two centuries after it was first proposed because of an incredibly determined (or pissed-off) student. (Watson’s grade in the course was retroactively changed in 2017 to an A+.)

There are lessons here. One person can make a difference. A liberal arts education can have value besides consigning the recipient to the Burger King counter. Modern politicians can be responsive. A poor grade can motivate some students. Perhaps there are other lessons to be drawn; I’ll leave them to you. But it is surely not the case that First Amendment rights were meant to have primacy because they come first in the Bill of Rights. 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–dare we say fake–history?

And this fake history misleads. When the revisionists talk about a First Liberty, they are referring to the free exercise of religion, but that only comes second in the First Amendment. It is proceeded by the clause barring an establishment of religion. If it’s first at all, we can say that the first liberty is the right to be free from religion or at least state-sanctioned or -aided religion.

The so-called Establishment Clause is striking because of, among other things, its broad language. The Bill of Rights does not just prevent an established church. It bars any establishment of religion, and it does not just prohibit a formal establishment of religion, it goes much further and says there shall be “no law respecting” such an establishment. The founders did not just want to prevent an established church or the establishment of religion; their language indicates that the United States should not even be on a road that could possibly lead to such an establishment. (This divorce from religion is also evident in Article VI of the Constitution, which states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Some states did have religious requirements for office-holding that lasted into the nineteenth century. New Hampshire, for example, required state officials to “be of the Protestant religion.”)

Neither the placement of the Establishment Clause at the beginning of the First Amendment nor the fact that it serves purposes different from the rest of the amendment means that it is more important than the others. On the other hand, it should be viewed at least as important as the Free Exercise Clause. All interpretations of free exercise must also consider whether a law respecting the establishment of religion is being made.

               Perhaps more on that another time.

Posted on by rjonakait

The First Was Not Always the First (concluded)

          First Amendment rights do not have primacy because they come first. The initial Congress submitted twelve amendments to the states, and our First Amendment was then the Third Amendment. The states in the eighteenth century, however, did not ratify the first two proposals, and the Third became the First. But, you ask, what about the two proposed amendments that were not ratified with the Bill of Rights? Each is an interesting story providing several lessons.

          The first proposal, passed by a two-thirds majority of each house, said that after the initial census, “there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which, the proportion shall be so regulated by Congress that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.”

          Got that? The Constitution mandated that the original House of Representatives have 65 members, and after the first census, it grew to 105. It continued to grow but was capped in the early twentieth century at 435 members where it now stands. But what if that proposal had been ratified? (And it almost was, falling one state short in 1792.) Its meaning has been debated, but since that proposed amendment did not take effect, we don’t have an authoritative reading. Some scholars, however, have maintained that the unclear language would require a House of Representatives today with as few as 800 and as many as 5,000 Representatives. We dodged a bullet that the first proposed amendment was not ratified, and we should learn that those early constitutional drafters like James Madison and his fellows were not unbridled geniuses with accurate crystal balls.

          The second proposed amendment that did not get adopted with the Bill of Rights reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Here the language and purpose are clear. Our representatives should not be able to raise (or lower, ha ha) their pay until the voters have had the chance to consider the remunerative change. Clear, and to the real constitutional nerd, the language is recognizable. It is the text of the Twenty-Seventh Amendment, the last to have been adopted.

          Say what? The proposed second amendment was largely forgotten after it failed to be ratified in the 1790s, but in 1982, Gregory Watson, a University of Texas sophomore, wrote a political science paper contending that the old proposal could still be ratified since it had no time limit for ratification. His essay received a “C.” His grader thought Watson’s thesis was farfetched, but Watson set out to show up his teachers. He lobbied state legislatures to adopt the proposed amendment and met with success. States ratified what was once labeled the Second Amendment, and the amendment was certified as ratified on May 7, 1992, as the Twenty-Seventh Amendment. A proposal submitted by Congress to the states in 1789 became part of the Constitution two centuries after it was first proposed because of an incredibly determined, or pissed-off, student. (Watson’s grade in the course was retroactively changed in 2017 to an A+.)

          There are lessons here. One person can make a difference. A liberal arts education can have value besides asking about French fries. Modern politicians can be responsive. A poor grade can motivate some students. Perhaps there are other lessons to be drawn, but I’ll leave them to you.