Friday, March 2, 2012 – Essay #10 – Amendment I: Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

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.

In the American political tradition, we often refer to the freedoms of religion, speech, press, and assembly as our “first freedoms”; first not only because they are protected by the First Amendment to our Constitution but also because the freedom to speak, write, worship, and assemble peacefully is central to any conception of liberty worthy of the name. As Justice Benjamin Cardozo noted in an important Supreme Court case in 1937, the “freedom of thought and speech” is the “matrix, the indispensable condition of nearly every other form of freedom.”

But simply declaring, as the First Amendment does, that “Congress shall make no law respecting an establishment of religion” or “abridging the freedom of speech, or of the press or the right of people peaceably to assemble” does not immediately settle our current debates about the shape this freedom should take in political life. For the government will, as it always has, make some speech—libel, fraud, perjury, etc.—subject to criminal sanctions. The question we are constantly wrestling with is where the line between protected an unprotected speech is to be drawn. Just last week, for example, the Supreme Court heard oral arguments in United States v. Alvarez, a case challenging a congressional act that made it a crime to claim falsely to have won a military honor.

Xavier Alvarez, an elected member of a local government board in eastern Los Angeles County, told a group of people in 2007 that he was a retired marine of 25 years and that he had been a awarded a Congressional Medal of Honor for his heroic military service. Although he and his lawyers admit there was no truth to these claims, Alvarez nonetheless insists he had a constitutional right to make them. Whatever the Supreme Court decides, the outcome will depend on answers to some weighty questions– What is the purpose of the freedom of speech? Why do we have it? And are some types of speech beyond the pale of what is legitimately protected by the Constitution? The same may be said about the limits of religion and assembly, for we are always debating these anew. Is the Obama Administration’s mandate that religious organizations cover contraception, abortafacient drugs, and sterilization in their health insurance policies an affront to religious liberty? Should religious employers be subject to federal anti-discrimination laws? Is there a right to picket at the funerals of military servicemen? Can people simply campout in public spaces without appropriate permits?

To begin to answer these questions, it seems we must think through and understand our entire scheme of constitutional government. In a regime that seeks to protect the rights of individuals and create space for the vital institutions of civil society, we must balance the legitimate need for law and order against principled limits on government power. As the Founders were well aware, a legislature, made of ambitious and imperfect men, will, if left unchecked, draw “all power into its impetuous vortex.” The freedoms in the First Amendment stand as a bulwark against this type of concentration of power, first by protecting the liberty of conscience and the rights of religious and civic organizations and, second, by reminding successive generations about the rights that are indispensable to a free society. The power and force of the First Amendment is muted, however, if citizens are not educated and engaged. As the principal author of the First Amendment, James Madison, acknowledged, the “only guardian of true liberty” in a republican regime is, at the end of the day, the widespread “advancement and diffusion of knowledge.”

Justin Dyer, Ph.D. teaches political science at the University of Missouri, and he is the author of Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press).

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11 Responses to “Friday, March 2, 2012 – Essay #10 – Amendment I: Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri”

  1. Susan says:

    As the principal author of the First Amendment, James Madison, acknowledged, the “only guardian of true liberty” in a republican regime is, at the end of the day, the widespread “advancement and diffusion of knowledge.”

    How is it, then, when new knowledge is deiscovered, there is no mechaniosm to address laws passed when such knowledge did nnot exist.

    Specifically thinking of Roe v Wade which was passed before ultrasound technology and the discipline of embryology were developed to provide objective evidence on what actually happens at conception and in utero instead of the “theories” used to argue an embryo was not a human being.

    • Ralph T. Howarth, Jr. says:

      And that Roe v. Wade was not even a law but a decision between two parties: a plaintiff and a respondent, and a legal opinion given. The party of Roe also recanted her lawsuit afterwards.

  2. Thelma Wright says:

    The following sentences say it all.
    The power and force of the First Amendment is muted, however, if citizens are not educated and engaged. As the principal author of the First Amendment, James Madison, acknowledged, the “only guardian of true liberty” in a republican regime is, at the end of the day, the widespread “advancement and diffusion of knowledge.”

    When children and young adults are not taught both sides of an issue, they will not have a good base to stand on. Teachers and professors need to be nuetral, but many times they are not.

  3. Ron says:

    Thelma, Grandparents have far more time than parents to monitor what is being taught in our schools. Think of the power of just one grandparent in a school observing and disclosing to the school community bias in what is being taught and/or modeled by teachers and administrators. Grandparents have an obligation to be the vigilent eyes in our time-constrained society.

  4. Marc W. Stauffer says:

    “The power and force of the First Amendment is muted, however, if citizens are not educated and engaged.”
    I would submit to all that this includes The Constitution and all of liberty. I have pounded the bully pulpit of this very subject many times. I think of my own Judeo-Christian faith and rights being eroded away over the decades simply due to a faith that did not stand up and voice its opinion. I think of many society’s in history that failed to value their liberty enough to stand up and become engaged in their government. I think of today’s society, disengaged from and uneducated about their own government……what are we seeing happen to our freedoms and liberty as a result? Do we live in a society where being so absorbed in “self” is so accepted that Benjamin Franklin’s word of caution are coming to pass?
    “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

    • Ron says:

      I’m in full agreement with you Marc. Over my long life, I’ve stood by, along with many others, and dismissed many small incremental changes proposed and enacted by “progressives” as “not worth making a mountain over a molehill.” Now, I look back and see that was their strategy – don’t go for big changes, at least not yet. Take what little changes you can get and they accumulate. Today, those little insignificant changes have accumulated into some pretty large mountains. It’s only been in the past 10 years that I’ve realized what was going on. I hope there are many younger adults on this forum who can pick it up while they’re still young and have many years left to fight the good fight and overturn much of the progressive changes and attempts to replace our founders’ Constitution and vision. I’m doing what I can with my few years remaining; better late than never.

      • Ralph T. Howarth, Jr. says:

        It is common ploy to first get criminal and illicit behavior protected, then accepted, then sanctioned and subsidized in the last so the population is then paying for it.

  5. Charles_Alice says:

    We are thankful to live in a nation where the people are free to say or publish words without fear of retribution by our government. It is only reasonable and civil to consider others, however, in what we say e.g., showing discretion to consider the effects of crying “Fire!” in a crowded theater just because we are free to do so. It is imperative that, as a people, we protect our freedoms as Americans and never expect to thrive as free upon a ludicrous expectation that it is possible to maintain freedom without responsibility as if actions have no consequences. President John Adams said it right, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

    • Marc W. Stauffer says:

      Charles;
      Well said! I see that many of our current challenges are because we have abandoned our absolute foundation and its responsibilities and are trying to live by “doing what is right in our own eyes”.

    • Robert Sommers says:

      Why is there no law against walking into a fire hall and screaming “MOVIE!!” In the days before personal DVD players this would have gotten the same reaction as the reverse.

  6. Carol says:

    The first amendment leads our Bill of Rights for a reason. It is freedom of speech that allows us to share our thoughts with like-minded or not so like-minded citizens. We do not have to whisper our thoughts in fear. Andrew Breitbart practiced courage of expression. Perhaps we should accept his daring and stand up for our rights and our freedom. We shall not go quietly into the darkness of silence. We can lead with example and education.

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