Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

The Founders' Intent for the First Amendment
CPI News ^ | May 3, 2002 | Nathan McClintock

Posted on 05/03/2002 6:28:44 PM PDT by NathanM

The Founders' Intent for the First Amendment

By Nathan McClintock

Recently, I began reading an excellent book by David Barton called “Original Intent.” The more I read, the more amazed I become at the current “Politically correct” interpretation of the First Amendment when compared with what our Founding Fathers actually believed. With this in mind, I quickly persuaded myself to write a column detailing the Founders’ intent for the First Amendment.

Our Founding Fathers structured the federal government upon a Constitution designed to complement the State constitutions. When the Constitution was originally drafted, the Founders stated that each person was protected by his State’s Bill of Rights. In other words, each State, and not the federal government, protects the rights of its citizenry. Meanwhile, the Founders intended the First Amendment as a protection for the States from the tyranny of a federal dictatorship.

Before the U.S. Constitution could became law, it had to be ratified by the States. It was during this process of ratification that many of the States voiced their concern about a Federal Constitution without a bill of rights that protected, among other things, the States.

In one such case, the delegates from the State of Rhode Island were in favor of an amendment to the Constitution that would “guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this constitution expressly delegated to the United States.”

When South Carolina ratified the Constitution, the delegates stated: “This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”

The 10th Amendment was added to the U.S. Constitution to address these concerns, and to insure that States’ rights would not be violated. In essence, it laid the groundwork by which to interpret the other nine amendments, including the 1st Amendment.

The First Amendment, which prohibits the U.S. Congress from restricting the freedom of speech, press, and religion, was penned by our Founding Fathers to act as protection from the tyranny of censored freedom of speech and regulated religion. The First Amendment as the Founders penned it was designed with the sole intention of prohibiting the United States Government from interfering with States’ rights. With this realization, our Founders insured that the States would retain their rights, as detailed in the 10th Amendment.

Our Founders’ signified that the First Amendment does not protect an individual from being censored by State governments. This can be readily seen in the very wording of the First Amendment. “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….” The Founding Fathers wrote the First Amendment in a specific manner. The U.S. “Congress” alone was restricted by this Amendment, while leaving the States unrestricted by the Amendment.

Interestingly, when the U.S. Constitution was amended to include a Bill of Rights, which includes the first 10 amendments, in 1791, many States continued to support a State sponsored religion. In fact, Congregationalism was the state religion in Connecticut, New Hampshire and Massachusetts into the first part of the 19th century. Why did the Supreme Court allow these States to continue sponsoring religion? The Court realized that the States were bound by their respective State constitutions. Our Founding Fathers signed a Federal Constitution that checks the power of the central government by preventing the U.S. Government from mandating what freedoms and rights the State Constitutions must guarantee.

Founding Father and Chief Justice John Marshall detailed the power of the U.S. Bill of Rights in the 1833 case of Barron v. Baltimore. “In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power (a Bill of Rights) were recommended. These amendments demanded [State] security against the apprehended encroachments of the general [federal] government--Not against those of the local [State] governments…. These amendments contain no expression indicating an intention to apply them to the State governments. This Court cannot so apply them.”

Justice Marshall’s conclusion was that the First Amendment protected the States from the Federal government. Of course, that’s history. After the North won the War Between the States, the First Amendment took on a whole new definition. During the Lincoln Administration, many states’ rights, such as the First Amendment, were interpreted in favor of a more powerful, central government. To this day, this amendment continues to be interpreted with a federal bias.


TOPICS: Constitution/Conservatism; Government; News/Current Events; Philosophy
KEYWORDS: constitution; firstamendment

1 posted on 05/03/2002 6:28:44 PM PDT by NathanM
[ Post Reply | Private Reply | View Replies]

To: NathanM
When the Constitution was adopted, nine of the thirteen states had established religions. The First Amendment was written so as to prohibit the federal government from interfering with state establishments.

That is why it reads "AN establisment of religion" and not "THE establishment of religion."

2 posted on 05/03/2002 6:33:49 PM PDT by nonliberal
[ Post Reply | Private Reply | To 1 | View Replies]

To: NathanM
Funniest thing, I thought the First Amendment was written at exactly the same time as the Second and the Third. Taken together these constitute a barrier against the anti-Protestant depredations of the kind fomented by the French Kings Louis XIII and XIV.

As we all instantly recall, they were in the practice of hunting down Protestants like animals and having them murdered, and all that sort of thing.

There's a lot more to this, but we all agree that without the Bill of Rights the current Constitution would not be adopted.

3 posted on 05/03/2002 6:40:32 PM PDT by muawiyah
[ Post Reply | Private Reply | To 1 | View Replies]

To: NathanM
My copy of "Original Intent" is dog-eared and falling apart. I wrote a play around the facts and quotations found within which has been playing annually for five years with the sixth coming up this July. Each year audience members are astounded at the "real" words the Founding Fathers spoke. We've even taken the production onto the streets with some unusual results but always people are surprised.
4 posted on 05/03/2002 9:14:10 PM PDT by elephantlips
[ Post Reply | Private Reply | To 1 | View Replies]

To: NathanM
BUMP!
5 posted on 05/03/2002 9:27:00 PM PDT by Tauzero
[ Post Reply | Private Reply | To 1 | View Replies]

To: Tauzero
Good column.

*bump*
6 posted on 05/04/2002 10:26:34 AM PDT by CPI News
[ Post Reply | Private Reply | To 5 | View Replies]

To: elephantlips
My copy of "Original Intent" is dog-eared and falling apart. I wrote a play around the facts and quotations found within which has been playing annually for five years with the sixth coming up this July. Each year audience members are astounded at the "real" words the Founding Fathers spoke. We've even taken the production onto the streets with some unusual results but always people are surprised.

Interesting. Is the text of your play available for email? I'd like to read it.

7 posted on 05/05/2002 9:54:52 AM PDT by Fithal the Wise
[ Post Reply | Private Reply | To 4 | View Replies]

To: elephantlips
That sounds like a very interesting play. I too, would be interested in an emailed copy if it is available. My web address is NathanMcclintock.com.
8 posted on 05/05/2002 1:33:22 PM PDT by NathanM
[ Post Reply | Private Reply | To 4 | View Replies]

To: NathanM
The substantive due process doctrine built on the 14th changed the game.
9 posted on 05/05/2002 1:46:45 PM PDT by edsheppa
[ Post Reply | Private Reply | To 1 | View Replies]

Comment #10 Removed by Moderator

To: NathanM
"In other words, each State, and not the federal government, protects the rights of its citizenry. Meanwhile, the Founders intended the First Amendment as a protection for the States from the tyranny of a federal dictatorship.

And all this time, I thought that the Bill of Rights protected U.S. citizens and not state governments. < sarcasm >

11 posted on 05/05/2002 2:03:24 PM PDT by Shooter 2.5
[ Post Reply | Private Reply | To 1 | View Replies]

To: edsheppa
The substantive due process doctrine built on the 14th changed the game.

More precisely, it provided the courts with a pretext for changing the game. Nothing in the 14th amendment actually stated that the restrictions in the BOR would now apply against state governments.

12 posted on 05/05/2002 5:32:41 PM PDT by inquest
[ Post Reply | Private Reply | To 9 | View Replies]

To: inquest
Remember that the doctrine is quite old. Courts of the late 19th century were much closer than we to when the 14th amendment was passed so perhaps there's something to their interpretation.
13 posted on 05/05/2002 6:05:08 PM PDT by edsheppa
[ Post Reply | Private Reply | To 12 | View Replies]

To: edsheppa
But it wasn't till about the 1920's that the courts started interpreting the 14th that way. Prior to then, they had explicitly rejected such an interpretation.
14 posted on 05/05/2002 6:18:48 PM PDT by inquest
[ Post Reply | Private Reply | To 13 | View Replies]

To: inquest
Not so. You may find this interesting. Scroll down a page or so. Just a guess on my part but I bet this doctrine had basis in law before 1897.
15 posted on 05/05/2002 6:28:29 PM PDT by edsheppa
[ Post Reply | Private Reply | To 14 | View Replies]

To: edsheppa
OK, I think I've misunderstood what you were saying. Yes, you're right that the 14th amendment explicitly prohibits states from denying anyone life, liberty, or property without due process. But that doesn't mean that the other provisions of the BOR apply to the states. The courts began ruling that way in response to a different part of the 14th - the "privileges and immunities" clause. Sorry I wasn't paying close enough attention.

But anyway, it's that "privileges and immunities" clause that's been misapplied, in my view, because privileges and immunities of citizenship are not the same as rights of people.

16 posted on 05/05/2002 6:35:12 PM PDT by inquest
[ Post Reply | Private Reply | To 15 | View Replies]

To: inquest
The 14th Amendment, which was ratified July 9, 1868, was to protect from discrimination between blacks and whites. Very simply, the Amendment dictated that State governments must give equal rights to all races. Today, this Amendment is used broadly (more Fed control), instead of being used to see that all citizens of each State enjoy the same rights as the others in the State. Nathan McClintock
17 posted on 05/05/2002 6:46:42 PM PDT by NathanM
[ Post Reply | Private Reply | To 16 | View Replies]

To: inquest
I'm not an expert by any means, but the author of that article I linked definitely thinks that substantive due process is based on an interpretation of the due process clause of the 14th.
... The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law" (§ 1). This clause limits the powers of the states rather than those of the federal government.

The Due Process Clause of the Fourteenth Amendment has also been interpreted by the Supreme Court in the twentieth century to incorporate protections of the Bill of Rights, so that those protections apply to the states as well as to the federal government. Thus, the Due Process Clause serves as the means whereby the Bill of Rights has become binding on state governments as well as the federal government.

... The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Supreme Court for the first time used the substantive due process framework to strike down a state statute. ... The Allgeyer case concerned a Louisiana law that made it illegal to enter into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged a right to enter into lawful contracts guaranteed by the Due Process Clause of the Fourteenth Amendment.


18 posted on 05/05/2002 7:16:38 PM PDT by edsheppa
[ Post Reply | Private Reply | To 16 | View Replies]

To: edsheppa
Good point. However, I do not believe the Founders would have approved of the 14th Amendment, because it is totally contrary to what they believed and wrote.
19 posted on 05/05/2002 7:25:03 PM PDT by NathanM
[ Post Reply | Private Reply | To 18 | View Replies]

To: NathanM
Probably true but irrelevant. They believed in the consent of the governed and, realizing that the opinions of the people about government change in time, the founders were wise enough (the second time around) to make it possible to amend the constitution and thereby change the law of the land - even is ways of which they might disapprove.
20 posted on 05/05/2002 7:40:56 PM PDT by edsheppa
[ Post Reply | Private Reply | To 19 | View Replies]

To: edsheppa
...the author of that article I linked definitely thinks that substantive due process is based on an interpretation of the due process clause of the 14th.

And I'm not disputing that point (at least not here, anyway). It's true that it looks like I was disputing it earlier, but that's because I had misunderstood what you were getting at (which I agree was my fault). What I'm saying (now that I do understand your point) is that substantive due process doesn't seem to cover the rest of the bill of rights. It doesn't, in and of itself, mean that the state can't do what the first amendment prohibits the federal government from doing.

21 posted on 05/06/2002 8:16:04 AM PDT by inquest
[ Post Reply | Private Reply | To 18 | View Replies]

To: edsheppa
...the founders were wise enough (the second time around) to make it possible to amend the constitution and thereby change the law of the land - even is ways of which they might disapprove.

Agreed.

22 posted on 05/06/2002 8:17:57 AM PDT by inquest
[ Post Reply | Private Reply | To 20 | View Replies]

To: inquest
I'd have to be shown that. From what I've read it appears the SC has extended first amendment prohibitions to the states. Do you have an example in which the SC has allowed state regulation of speech or religion in a way it has denied the federal gov't?
23 posted on 05/06/2002 9:31:22 AM PDT by edsheppa
[ Post Reply | Private Reply | To 21 | View Replies]

To: edsheppa
Do you have an example in which the SC has allowed state regulation of speech or religion in a way it has denied the federal gov't?

I thought I did but I don't. When I went to look, I found that I had been more confused that I thought. I had always heard that it was the "privileges and immunities" clause that the courts cited in imposing the BOR on the states, but you're right, it does look to be the substantive due process doctrine. Thanks for the heads up. I'm glad we had this conversation.

24 posted on 05/06/2002 12:02:45 PM PDT by inquest
[ Post Reply | Private Reply | To 23 | View Replies]

To: inquest
I have more information on the 14th Amendment, which I will publish in next week's column. To some, it may be rather surprising! Also, I have current examples of SC that "violate" the Fed Constitution. All that and more, soon. I will post links to the articles on this thread.
25 posted on 05/06/2002 5:18:25 PM PDT by NathanM
[ Post Reply | Private Reply | To 24 | View Replies]

To: NathanM
Be looking forward to it. Thanks.
26 posted on 05/06/2002 6:21:58 PM PDT by inquest
[ Post Reply | Private Reply | To 25 | View Replies]

To: inquest
The 14th Amendment Column...

Faulty Foundation of the 14th Amendment
27 posted on 05/13/2002 7:28:20 PM PDT by CPI News
[ Post Reply | Private Reply | To 26 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson