The Right to Effective Citizenship

Free worship; free speech; freedom to publish; and the rights of the people to assemble peaceably and to petition their government: we cherish our First Amendment freedoms but we may not see how intimately they support one another, how much they need each other.

Free worship means that I may listen to the most important things, the first principles that govern my life, without fear of persecution.  These principles will anchor my conduct, providing me the standards by which I may judge my own actions and those of others.  Free speech and freedom to publish mean that I may safely tell people what I think, having worshipped—that is (among other things) having thought.

But what good would my worship, my speaking, and my writing be—beyond those who happen to worship with me, or hear me speak, or read my writings (small numbers all!)—if I and my fellow citizens had no right to get ourselves organized, to get the attention of our elected representatives, to do things that have real effects in our public life?

The right to assemble in public did not prevail in most places, in most times.  Public assemblies endanger rulers.  They can endanger the peace.  During the virulent civil wars of England, fought over intractable issues of religious conviction, what sensible king would not view such gatherings with fear and suspicion?  In his Letter Concerning Toleration the great English political philosopher John Locke acknowledged that assemblies of men had often been “nurseries of faction and sedition.”

But Locke went on to write that this was so only because “the unhappy circumstances of the oppressed or ill-settled liberty” make such men violent.  In an atmosphere of genuine religious toleration—of well-settled liberty—this need not be so.   After all, he argued, do men not meet peaceably every day in local markets?  Do they not circulate freely on the streets of cities?  Why then do rulers fear religious assemblies?  “Let us deal plainly,” Locke writes. “The magistrate is afraid of other churches, but not of his own; because he is kind and favourable to the one, but severe and cruel to the other.” But “let him let those dissenters enjoy but the same privileges in civil as in other subjects, and he will quickly find that these religious meetings will no longer be dangerous….  Just and moderate governments are everywhere quiet, everywhere, safe; but oppression raises ferments and makes men struggle to cast off an uneasy and tyrannical yoke.”

Thomas Jefferson knew his Locke. In the summer of 1774 he addressed his fellow citizens on General Gage’s proclamation in Massachusetts, “declaring aTreason for the Inhabitants of that Province to assemble themselves to consider of their Grievances and form Associations for their common Conduct on the Occasion.”  Gage was Commander in Chief of his Majesty’s army in America; his “odious and illegal proclamation must be considered as a plain and full Declaration that this despotick Viceroy will be bound by no Law, nor regard the constitutional Rights of his Majesty’s Subjects, whenever they interfere with the Plan he has formed for oppressing the good People of the Massachusetts Bay.” When Jefferson and his colleagues in the Continental Congress met two years later to issue their own proclamation—for independence and against tyranny—they never forgot that the right to assemble peaceably gives a people the way to carry their thoughts and speeches into civic action.

Fifteen years almost to the day on which Jefferson spoke, the House of Representatives debated the first ten amendments to the newly-ratified federal constitution.  The floor manager for the amendments was none other than Jefferson’s closest political ally, James Madison.  In the course of the debates the Congressmen showed that they understood matters exactly as Jefferson had done.  “If people converse together, they must assemble together,” one Member quite sensibly remarked.  But more, “the great end of meeting”—its purpose—“is to consult for the common good; but can the common good be discerned” unless “the object is reflected and shown in every light.”  That is, I may revolve a topic in my own mind a thousand times, but when when I share my thoughts with others  I will begin to see things I had overlooked.  This is the advantage of deliberation in common over mulling things over by oneself.  Still further, as another Member observed, “under a democracy, whose great end is to form a code of laws congenial to the public sentiment, the popular opinion ought to be collected and attended to.”  We not only need to think; once our thoughts have been refined and augmented by the thoughts of others, we then need to get the attention of those who can do something about the things upon which we have resolved.  The Congressmen knew that writing a letter to one’s Congressman will likely have far less effect than a petition signed by dozens—the product of a public assembly of citizens.  Therefore, the same Member concluded, “the people have the right to consult for the common good.”

When the French political philosopher and parliamentarian Alexis de Tocqueville arrived in America a half a century later, he remarked on the importance of civil associations to American self-government.  Under the old states of Europe, the class of people who stood between the central state powers and the people had been the aristocrats—the same class that forced the Magna Charta on the King of England.  But in the modern world, Tocqueville saw (he being an aristocrat), aristocracy was declining.  Absent such a class, who or what would stand in the way of an oppressive central government tyrannizing the people.  Would democracy collapse upon itself, with the people first setting up a government and then watching helplessly as it moved ponderously to crush the very rights governments are designed to secure?

Not so in America, Tocqueville saw.  There, the citizens have learned to organize themselves not `vertically’ under an aristocratic class but `horizontally’ with civil associations: political parties, churches, clubs, societies—all of them with sufficient strength to push back against unwarranted governmental encroachments.  Tocqueville reported that Americans had perfected “the art of association” to the highest degree of any people, employing this art peacefully to defend their liberties against their own governments, when necessary.  To this day, Americans dissatisfied with their local school board, their state legislature, or the federal government itself, respond by getting together with like-minded citizens and—as we like to say–`taking control of their own lives.’  In so doing, they act exactly as John Locke, the American founders, and Tocqueville wanted and expected human beings to do.  Even more, by exercising the art of association Americans to a large and impressive degree govern themselves—that is, they get things done, so that governments will need to do less.  Governments that need to do less can be smaller and likely less oppressive than governments that think they need to do it all. And those fewer things they do need to do will likely be done better.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

 

“Congress shall make no law … abridging the freedom of … the press ….”  Those words, along with all others in the First Amendment to the Constitution of the United States, are engraved in the 74 foot high marble wall on the front of the Newseum on Pennsylvania Avenue in Washington, D.C.  The words are simple.  Enforcing those words – though not always easy or successful – is crucial to our democracy.

I recently saw a friend touring the Newseum who told me of a Russian visitor’s observation about our freedoms.  The visitor said, “We have freedom of the press in Russia too.  The difference in America is you remain free after you publish.”  His comment is both humorous and profound.

Many countries have a Bill of Rights.  Very few have mechanisms to enforce and preserve those rights.  What distinguishes our system of government from most others in the world?  What breathes life into our Constitutional freedoms?  We are indebted to our founders for the brilliant system of checks and balances of power built into our Constitution.  One of the most important checks on power is an independent and free press, “designed to serve as a powerful antidote to any abuses of power by governmental officials” as the Supreme Court noted in Mills v. Alabama (1966).

How do the mechanics and the design of the “powerful antidote” work?  Suppose Congress does make a law that abridges the freedom of the press.  In the United States, the press is free to challenge the law not only in print and other media, but also in court.  Once in court, an independent Judiciary is free to declare such a law unconstitutional and preserve the press’ freedom.  If Congress attempts to undercut the power of the Judiciary by, for example, requiring judges to explain their decisions to a Congressional committee or face impeachment for an unpopular decision, the press can expose the attempt and bring public pressure to bear on Congress.  Such critical analysis, coupled with an engaged and educated public can prevent the evisceration of an independent Judiciary (in this example) or other intrusions by one branch on another’s responsibilities.  The mechanics are circular and the gears work – most of the time.

Our history is certainly full of examples of a free and independent press exposing abuses of power by governmental officials.  Unfortunately, there are also examples in our history in which we have failed to enforce the freedom of press embodied in the First Amendment.

Only seven years after the ratification of the First Amendment, a Federalist-dominated Congress passed the Sedition Act of 1798, a tool used to suppress the contrary views of Democratic – Republican newspaper editors.  For example, Matthew Lyon, a member of the U.S. House of Representatives from Vermont and newspaper owner, was put in jail for referring to President John Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”  It became abundantly clear that the Act was unconstitutional, and a new Congress allowed the Act to expire in 1801 but not before several egregious suppressions of a free press had occurred.

There are several other examples of suppression of the press in our history, notably during periods of war.  Abolitionist newspapers were torched in the 1830’s.  During the Civil War, the Lincoln Administration ordered the closure of several newspapers and the arrests of several newspaper editors who opposed the Union efforts.  During World War I, Congress passed the Espionage Act of 1917, President Woodrow Wilson invoked it aggressively to suppress publications opposing to the draft, and in 1919 the Supreme Court unanimously upheld the convictions of Charles Schenck and Elizabeth Baer who had been convicted of violating the act when they printed leaflets urging draftees to resist the draft.  Similarly, the mailing privileges of the Milwaukee Leader were revoked by the Postmaster General during World War I because he concluded that their articles were interfering with the military’s efforts.  The Supreme Court upheld the Postmaster General’s actions.

In retrospect, it might appear that many of these historic suppressions of a free press could not occur in the United States today and that we have made significant progress and learned from those experiences.  During times of conflict, however, our country has compromised on freedom of the press.  Whether these particular examples could be repeated or not, they demonstrate that even with the protections clearly provided in our Constitution, and even with the best form of government ever devised to ensure those protections, ultimately the best defense of our Constitutional freedoms depends on an attentive, educated and engaged citizenry.

That is why the civic education efforts of Constituting America and the Freedom Forum are so vitally important to our future.

James C. Duff is the President and chief executive officer of the Freedom Forum and CEO of the Newseum and the Diversity Institute.  Mr. Duff is the former Director of the Administrative Office of the U.S. Courts, former Counselor to Chief Justice William H. Rehnquist, and former Chairman of the U.S. Supreme Court Fellows Commission.

 

February 27, 2012 – Janine Turner Interviews Andrew Langer, President of the Institute for Liberty on The Janine Turner Radio Show!

Listen to Andrew & Janine discuss Andrew’s essay: The First Amendment: Congress Shall make no law….abridging the freedom of speech!

Congress shall make no law… abridging the freedom of speech.

In our free republic, fewer rights are more cherished, or more important, than those enumerated in the First Amendment.  It is the hallmark of a free society that the people can speak their minds without fear of retribution from the government or other citizens.  Fundamentally, there are always two questions that accompany any dissection of free speech rights:  what is their seminal role in our society (ie, why do we have them?), and what are the limits to free speech?

People say things with which we might vehemently disagree.  They may make us angry, they may make us outraged.  And the feeling might very well be mutual.  Yet both their speech, and your own, are equally protected under the US Constitution.  For the United States, this creates a true marketplace of ideas.  A marketplace that has the benefit of allowing ideas that are reasoned, thoughtful, and valid to take hold, while ideas that simply aren’t (reasoned, thoughtful, or valid) to wither and die.

It is the latter that is perhaps free speech’s greatest asset in our society.  Justice Louis Brandeis wrote that, “sunshine is the best disinfectant,” and this is especially true when it comes to speech that, were it outlawed, would fester or become cancerous when kept behind closed doors.  In fact, when you look at societies within which free speech was outlawed, when those societies ultimately moved towards freedom, the forces of hate simply exploded on the scene, because for so long there had been no open debate or airing of the stilted beliefs of extremists groups.

In the US, we want people with the most hateful, horrible ideas to be able to say them, loudly and publicly.  That way, we can not only challenge them directly (if we want), but we know which people to avoid, if we want.  It’s as though they’ve put on the brightest, most-garish sign around their neck, saying, “AVOID ME,” and we’d be wise to heed their warnings.

Just as important, however, are the limits to those free speech rights.  It is one of the most basic hallmarks of our society that the exercise of rights is only justly limited by their direct and harmful impact on others.  In other words, I may have the right to swing my hands around wildly, but that right ends at the point where my hands meet someone else’s nose.

Though the adage still prevails that “sticks and stones may break my bones, but names can never hurt me,” the truth is that words can and do hurt—and the law has made several important carve-outs for speech that is not protected by the 1^st Amendment.

One of the most basic carve-outs is for speech that is considered defamatory—which, in laymen’s terms, is essentially knowingly spreading falsehoods about a person for the purposes of harming that person’s reputation—destroying a person’s personal life or ability to make a living.  Other restrictions are placed on speech that works to incite violence, or immediate wanton lawlessness—the concept that someone can neither work to provoke people to an immediate riot, or, likewise to yell “fire” in a crowded theater.  Commercial speech, and speech over the public airwaves, can also be regulated—generally under the concept that people cannot make false claims about the goods that they sell, and that because the government assigns space on the public airwaves, the government can prohibit certain kinds of content from being broadcast if it can be deemed offensive.

But by that same token, one of the most controversial debates over free speech today if found in the realm of whether or not corporate interests have free speech rights in the same manner that individuals do.  The Supreme Court ruled in their well-known Citizens’ United decision that, in point of fact, corporations do have these rights—a decision that many progressives have decried, and are attempting to undo.

Should they succeed, it would create a very dangerous situation—not only because these corporations are taxed and regulated very similarly to individuals (and, in some cases, more stringently), and therefore ought to be able, as affected entities within a society, to speak out on their own behalf, but many corporate institutions serve valuable purposes within our civil society.

If we fail to extend free speech protections to corporations, what is there to prevent an angered government, upset with a news company’s coverage of their actions, from shutting down that news organization’s business?  While some might argue that the government would be prevented from silencing the individual journalists within that organization, should the government succeed in closing down the corporation’s tools, the journalists will have been silenced.

Dissent is the hallmark of any free society—and whether that dissent comes from individuals or corporations, it is an essential element in civil discourse.  As a people we require free speech to allow good ideas to prevail, and bad ideas to be defeated.

Andrew Langer is President of the Institute for Liberty, and host of The Broadside, a weekly internet radio show, which can be heard on the Institute for Liberty website.

Watch or Listen to Janine Turner Read: The First Amendment: The Free Exercise Clause – Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof . . .”

The Free Exercise Clause is perhaps the least commonly understood part of the First Amendment. The mythical “average American” presumably understands what freedom of speech means – we protect the right of almost anyone to say almost anything – and the Establishment Clause has been given the catchy, if mostly inaccurate, shorthand of “separation of church and state.” But were one to ask this hypothetical average American what protecting free exercise of religion means, she might respond with a blank stare.

So why is the Free Exercise Clause so unknown, and what does it really mean today? Some blame for the Clause’s obscurity must lie with its checkered history. That history can be divided into roughly five stages. The first stage lasted 87 years, from 1791 to 1878, and was characterized by judicial silence. Although the Clause was ratified as part of the Bill of Rights in 1791, the Supreme Court had no occasion to address it, other than to say briefly, in 1842, that it applied only to the federal government, not states and cities. This silence does not mean that the Clause had no public meaning; indeed, it was cited time and again in debates over religion in the public square. But it did not appear in court, and its meaning remained rhetorical and political, not legal.

That first phase came to an end in 1878, with the Reynolds case. In that case, the Supreme Court held that the Free Exercise Clause did not protect the practice of religious polygamy. Thus began an unsettled period for the Court’s Free Exercise jurisprudence. Two separate strands of caselaw emerged—one rooted in Reynolds and limitations on religious exercise, and another rooted in the ability of churches, synagogues, and other religious institutions to manage their own internal structures and their property.

The tensions in Free Exercise jurisprudence became apparent in a series of cases involving Jehovah’s Witnesses during the 1940s. These cases at first resulted in at first narrow readings of the Clause and then increasingly broader readings that provided protections to the Jehovah’s Witness plaintiffs.

This second and turbulent stage ended, and the third began, with Sherbert v. Verner, decided in 1963. In that case, the Court took a very strong stand in favor of individual religious liberty, holding that a Seventh-day Adventist could not be denied unemployment benefits because she was fired from her job for observing the Sabbath. The Court said that any government-imposed “substantial burden” on religious activity would be very difficult for the government to justify. This standard, extremely protective of religious liberty, represented a high-water mark in the history of the protection of Free Exercise.

The Clause’s course took a sharp turn in a less religion-friendly direction 28 years after Sherbert was decided. In Employment Division v. Smith, decided in 1990, the Court held that Native Americans who had been convicted for smoking peyote in accordance with their religious beliefs did not have a right to state unemployment benefits. Because the Oregon anti-narcotic law at issue was a “neutral rule of general applicability” the Free Exercise Clause would provide no protection to the religious plaintiffs.

This was true even though, like the Sherbert regulation, the rule imposed a “substantial burden” on their religious activity. The Smith ruling represented a dramatic shift in the law of Free Exercise, making it much more difficult for religious people to protect themselves against religion-restrictive laws. For a time, it seemed that the only way to evade Smith’s rule would be by convincing Congress and state legislatures to provide relief in the form of civil rights statutes protecting religion.

But in 2012, the Court announced a fifth and entirely new stage of the Clause’s existence in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In Hosanna-Tabor, the Court held, in a 9-0 decision,that federal and state employment discrimination laws do not apply to “ministerial” positions. The Court thus made clear that Smith’s rule did not apply in the same way to religious institutions as it did to religious individuals. Indeed, religious activities related to “internal church decisions” would fall outside the Smith rule entirely, a result that shocked many long-time observers of the Court’s religion decisions.

The next steps for the law of Free Exercise are not clear, but they are much more hopeful for religious people and institutions than they were before Hosanna-Tabor was decided.One could argue that this up-and-down history shows a kind of national, or at least judicial, schizophrenia when it comes to the place of religious people in public life. But that schizophrenia may simply mirror Americans’ uncertainty about the role of religion in public life, especially given the increasing religious diversity of our nation. The law could move in the direction of France or other Western European countries that have in effect attempted to drive religion out of public life, or to control it directly. But the law might also move in the direction of increasing religious freedom for every American, and decreasing government interference with religious people.

So what should the Free Exercise Clause mean, at its most fundamental level? There is a case to be made that the Clause stands for the idea that every person, and every religious group, gets to decide for themselves what they believe about the good and the true, and to act on those beliefs in public. In that sense, the Clause carves out a kind of sacred space in the American body politic—a place where Americans can work out their relationship with God free from government interference, indeed, a place where the government must fear to tread. By its nature, religious freedom cannot be without limits. But by the same token government cannot be without limits, and some areas must remain completely free from government influence.

But this sacred space is under siege in today’s ever-growing regulatory state. As they expand their influence over more and more areas of American life, governments at the federal, state, and local levels increasingly run roughshod over the claims of conscience. Prominent recent examples include the federal government’s attempt in the Hosanna-Tabor case to take over some ministerial and hiring and firing decisions, as well as the recently-issued healthcare mandates that would force Catholic, Protestant, and other religious groups to violate their consciences by paying for drugs and devices they believe cause abortion. State governments have made similar attempts to limit the conscience rights of religious institutions like churches and homeless shelters, as well as the conscience rights of individuals like pharmacists and doctors who object to participating in certain medical procedures.

These conflicts will only grow in size and number as government expands and becomes more aggressively secular. Therefore it will be important for religious Americans in coming years to fight for the sacred space staked out by the Free Exercise Clause, because government will not stay out on its own.

Eric Rassbach is Deputy General Counsel at The Becket Fund for Religious Liberty, a non-profit law firm based in Washington, D.C. that defends the free expression of all religious traditions. He led the Becket Fund team that litigated the Hosanna-Tabor case.

 

Watch or Listen to Janine Turner Read: The First Amendment: The Establishment Clause – Guest Essayist: David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

The First Amendment:  The Establishment Clause

The Establishment Clause of the First Amendment might be less well known today than “the wall  of separation between church and state” metaphor used by President Thomas Jefferson in an 1802 letter.  This misinterpreted metaphor has come to define the modern debate over church and state, leading many Americans to believe that the Constitution calls for the strict separation of religion and politics.

In fact, what the Establishment Clause actually accomplished is nearly opposite what the Supreme Court in the twentieth century said it means.  In barring Congress from establishing a national church, the Establishment Clause marked an important commitment of the Founders to civil and religious liberty.  Unlike England, America would not have an official church.  This is good for government, and good for religion.  Congress was prohibited from imposing a one-size-fits-all religious straitjacket on the nation, leaving state governments wide latitude of operation in matters of church and state.

In the 1947 Supreme Court decision in Everson v. Board of Education, the First Amendment policy of federalism was supplanted by the doctrine of incorporation.  Ruling that the First Amendment’s Establishment Clause is applied not just against Congress but also against the states (through the Due Process Clause of the Fourteenth Amendment), the Court put itself on a quick path to becoming the national arbiter of all disputes over religious matters pertaining to public entities.  As Justice Hugo Black wrote, “The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.  We could not approve the slightest breach . . . .”

Under this new standard, the Supreme Court found breaches in the wall nearly everywhere it looked, as it ruled unconstitutional many longstanding practices, including prayer and Bible reading in public schools.  Assuming the mantle of a “national school board,” as one scholar put it, the Court put forward various “tests” by which it sought to determine the religious or secular purpose of public assistance to religion.

The modern legal understanding of the Establishment Clause has led to a confusing array of contradictory decisions.  For instance, whether a municipal crèche display is an unconstitutional violation of the Establishment Clause hinges in part on what other symbols—religious or secular—are included in front of city hall.  State laws allowing government funding of secular textbooks for private schools have been deemed by the Court constitutional, but government funding of field trips in private schools has been held unconstitutional.

For the Founders, public support of religion, whether by the federal or state government, was never tantamount to the unconstitutional establishment of religion. In fact, nearly all of the Founders held that the public promotion of religion and virtue was vital to the maintenance of republican institutions.  Religion was affirmed as a public good, not an evil to be kept private.  Prudence dictated, many early Americans believed, that state established churches did not make for good policy, but none argued that when a dispute arose in a state about its established church, or public support of religion, that the national government should step in and impose a solution.  That was a matter for the states to decide, and increasingly they would do so informed by constitutions and laws that upheld the full natural rights of all citizens.

Protection of religious liberty was of paramount importance to the Founders, but the means by which citizens were protected in their liberty came not mainly in the adoption of the Establishment Clause, but in the constitutional architecture as a whole.  “The Constitution is a bill of rights,” Alexander Hamilton said, emphasizing the fact that the locus of liberty is not any list, but rather the equipoise of limited government, federalism, and separation of powers that should be maintained in the Constitution’s structure.

Finally, it is worth noting that the First Amendment was not even first on the list of twelve that James Madison originally proposed in the First Congress in June 1789.  Nor was it first in the list the Congress sent to the states in September of that same year.  When the two amendments preceding what is now the First Amendment were not ratified immediately (one was about representative ratios, while the other, which was adopted as the 27^th Amendment, was about congressional compensation), the Establishment Clause was thrust into its starring role as the first clause in the First Amendment.

The Establishment Clause of the First Amendment is a clear statement of the fact that the United States of America has no official church.  In endorsing the federalism of the Constitution, and explicitly barring Congress from arrogating unto itself power it does not have, the Establishment Clause reaffirms the powerful commitment of the Constitution to the promotion of civil and religious liberty.

David J. Bobb, Ph.D., is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.  Hillsdale’s free online course, “Constitution 101,” starts this week.  The U.S. Constitution: A Reader, around which the course is based, includes 113 documents, including a complete section on religious liberty.

 

Watch or Listen to Janine Turner Read: *The Bill of Rights: America’s Bulwark of Liberty – Guest Essayist: Horace Cooper, senior fellow with the Heartland Institute

The First Ten Amendments to the United States Constitution make up what is called “The Bill of Rights.”  This remarkable collection of limitations on the power of the national government was written by James Madison and heavily influenced by George Mason.  Today it operates as a barrier to oppressive government at all levels and protects citizen liberty.

While most Americans at the time of the writing of the US Constitution agreed that the Articles of Confederation had failed to provide the former colonies with the powers needed to insure the experiment in self-government would succeed, there was another contingent who argued that any new and expanded powers given to the central government must be overlaid with specific limits in order to ensure that the citizens rights wouldn’t be trampled.  They argued that rather than limiting principles, there should be specific prohibitions on what government is allowed to do, especially in the context of its treatment of its citizens.

The two camps generally called themselves Federalists and Anti-Federalists.  While the design and makeup of the original Constitution is a triumph of the Federalists, the Bill of Rights represents the success of the Anti-Federalists.

Timeless in their rigor and value, the Bill of Rights has proven to be a brilliant tool to limit government excesses and insure that the individual has the kinds of freedoms that many of us take for granted.  While the writers of the Constitution created a system of checks and balances that cause the three branches of government to be limited in their ability to achieve hegemony vis-à-vis the other, it is the Bill of Rights that has done more to protect individual liberty  — doing so by specifically placing limits on government power.

While the Federalists won the day with the original draft of the Constitution, it soon became clear that the American people wouldn’t accept the Constitution unless a Bill or Rights was agreed to.  Shortly after meeting, the first Congress began that process.  Originally 17 Amendments or changes to the Constitution were presented and passed by the House of Representatives. Of those 12 were passed by the United States Senate and sent to the states for approval in August of 1789. 10 of these  were  approved (or, ratified) with George Mason’s state of Virginia becoming the last to ratify the amendments on December 15, 1791.

Indubitably, liberties that we take for granted as Americans find their origin in the Bill of Rights.  One key aspect of the Bill of Rights is that instead of expanding or authorizing the powers of the central government, the Bill of Rights squarely and directly treats government power as a potential threat to citizen liberty and places clear and unequivocal barriers to government action.  More a list of what government cannot do, the Bill of Rights provides a zone of liberty that makes our American system of citizenship the envy of the world.

The supporters of the concept of the Bill of Rights understood that government’s tendency was to expand and over-run the individual.  And the beauty of the Bill of Rights, its simplicity is, it limits government power and by doing keeps Americans free.

Amendment I

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 government cannot make you believe in a religion.

 The government cannot keep you from practicing any religion you choose.

 The government cannot keep you from saying what you wish.

 The government cannot keep you from writing what you want.

 The government cannot stop you from publishing what you wish.

 The government cannot keep you from joining together peacefully with others to express your views.

 The government cannot prevent you from complaining about what the government or others are doing to you.

The framers understood that freedom of faith, thought, political belief and other forms of expression were central to citizen liberty and they specifically barred government action in this arena.  Rather than leave to the majority whether Catholics, Protestants, Jews or even people of no faith would receive preference by the national government, the First Amendment insures that no religious group would be preferred nor would any be penalized.  It also prevents the government from using coercive powers to reward certain political thoughts or writings as well as punishing the same.  Finally it further insures that citizens have the right to complain specifically about the activities of the government and to engage in demonstrations as well as formally taking measures to get the government itself to change policies.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

 The government cannot take away your right to own and keep guns.

Rather than leave fire arm access to the government, our Bill of Rights explicitly insures that the right to bear and own firearms is a fundamental right – not a privilege – that resides with every citizen.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

 The government cannot make you let soldiers to live in your house unless the country comes under attack and Congress specifically authorizes it.

Even though war-making activity is the quintessential government duty and activity, this power is not unlimited.  While it might be cost-effective or even efficient, government has to respect that our homes are our property and may not be overtaken by the military during peace-time and during war only in a legal manner determined by Congress.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 The government cannot come into your home unless it has legal permission from a judge.

Perhaps one of the greatest threats that the citizen faces is the potential that the central government will use force to enter our property whether under pretext of solving crimes or ferreting out critics of the government residing therein.  The founders recognized that the principle that the individual citizen was the “king” of his own “castle” especially when the government sought unlawful entry was a powerful limit on government excesses.  Juxtaposing judges and other magistrates before the government can take, enter or search property protected liberty in the 18^th century and the 21^st as well.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 The government cannot hold you in jail for a major crime without the knowledge and approval of your fellow citizens.

 The government cannot try a person twice for the same crime.

 The government cannot make incriminate yourself.

 The government cannot take away your life, liberty, or property without following the law.

 The government cannot take your private property from you for public use unless it pays to you what your property is worth.

King George and his predecessors in England had the ability to falsely accuse and even imprison or execute his opponents without even a pretext of any real violation of the law.  Our system rejects this idea.  The Bill of Rights requires that your fellow citizens be presented with the charges against you and that those charges not be presented to you more than once or that you or your property be taken from you without having legal recourse to challenge it.  Americans can’t be forced to give incriminating testimony against themselves and their assets can’t be confiscated by the government without being justly compensated.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

 The government cannot hold you in jail for a long time without a trial if you  are accused of having broken the law.

 The government cannot deny to you a speedy trial with a jury of your fellow citizens.

 The government cannot keep secret from you those who will speak against you.

 The government cannot prevent you from having your personal attorney.

 The government cannot keep you from having other people help you defend yourself in a courtroom.

Instead of the use of secret trials and star chambers, our system specifically requires that when people are accused the trials must not be unnecessarily lengthened and must be held in public.  The individuals who decide guilt or innocent – jurors – must be impartial and residents of the area where the accused crime was to have occurred.  Instead of announcing new charges mid-trial, the government must announce the charges with specificity and must present witnesses against him and must allow him to bring in his own witnesses to testify on his behalf and may not prevent him from having legal assistance if he chooses.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

 The government cannot keep you from having a trial decided by your fellow citizens in civil disputes and the fact-finding by the jury in those trials cannot be overturned by other courts.

Civil cases, like criminal cases provide potential opportunity for liberties to be risked.  Our founders guaranteed that civil disputes will be subject to jury trials instead of the whims of government magistrates and also that the findings of jurors can’t be second guessed by judges.  The government can’t pick sides or use its judicial appointees to try  to influence the outcomes of civil disputes.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 The government cannot make people pay an unfairly high amount of money for bail while they wait for a judge or jury to hear their case.

 The government cannot punish you for a crime in a cruel and unusual way.

The government is not allowed to skip the trial phase by holding citizens in jail with high bails having nothing to do with the severity of their crime or any flight risks they pose.  Even when citizens are found guilty, the federal government may not assess fines that aren’t connected with the severity of their crime nor may they issue punishments that are depraved and unduly harsh.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 The government cannot limit your rights to just those listed in the Bill of Rights.

Reaffirming the anti-federalists view that government tends to expand whenever and however it can and ultimately crowding out the rights and privileges of its citizens, our founders have made it clear that the Constitution and even the Bill of Rights do not attempt to outline every existing natural or inalienable right of citizens.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

 The government cannot claim to possess more power and authority than what the Constitution permits, and all other powers not listed in the Constitution belong to the states or individuals.

Since the Constitution is a charter of specific and enumerated powers, there are rights that exist above and beyond those addressed in it.  Those powers and rights that are not specifically addressed in the Constitution and those powers that are not banned by states through the Constitution are real and duly allowed to be exercised by the states and the people.

Horace Cooper is a senior fellow with The Heartland Institute

*Constituting America will be studying the individual amendments in the Bill of Rights from today through April 16. The above essay is an introductory overview. For a complete schedule of our project, click here