Skip to comments.The Founders' Intent for the First Amendment
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 States 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 Marshalls conclusion was that the First Amendment protected the States from the Federal government. Of course, thats 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.
That is why it reads "AN establisment of religion" and not "THE establishment of religion."
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.
Interesting. Is the text of your play available for email? I'd like to read it.
And all this time, I thought that the Bill of Rights protected U.S. citizens and not state governments. < sarcasm >
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.
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.
... 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.
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.
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.