Today, both religion and free speech are under assault, usually by those who say that we no longer need to interpret the Constitution according to what the framers of that document meant more than 200 years ago. Their argument is that it is unreasonable for us to be bound to think and behave the way people did over two centuries ago.
But, there is a reason why this amendment was added to our Constitution and whenever we have a question on how these or other words found in the Constitution are to be understood and applied in our day, it is vitally important that we understand what those reasons are. Therefore it is necessary for us to go back and look at what it was that caused our early Americans ancestors to add this first amendment to the supreme law of our land.
By 1775 the American colonists were becoming highly dissatisfied with King George in particular and the English Parliament in general over many of the unpopular laws that were being forced upon them. During this time each of the thirteen states had already formed their own legislative bodies and were passing their own laws. During these legislative sessions more and more people were complaining about what they had to endure at the hand of England and openly debated what they should do about it.
However, Britain called such people "rebels" and, in an effort to prevent their discussions from creating "commotions and insurrections", England passed a serious of laws that took away their right of self-government. It was their belief that if the Americans were kept from meeting with each other they could not collaborate enough to mount an insurrection. In 1774 Lord Dunmore, who was appointed by King George III to be the Royal Governor of Virginia, quickly moved to abolish the Virginia Assembly. Shortly thereafter he issued a proclamation calling on all able bodied men to assist him in tracking down and arresting all patriot rebels, many of whom were part of the Virginia Assembly.
In March of 1775 one hundred legislators of Virginia felt the need to discuss with one another what they should do in response to England's suppression of their liberties but, fearing being caught they rode separately for more than a hundred miles to a small town on the James River known as Richmond where, behind locked doors, they assemble in St. John's church.
During their meeting, a number of proposals were put forth as how to best deal with England's tyranny but the last person to speak was a man named Patrick Henry. He enumerated the many things England had done to take away their freedom, reminding the assembled delegates that despite all of their pleas and entreaties to the British crown, they had been rebuffed and more of their freedoms had been taken from them. At the conclusion of his remarks he then asked them the question, "Is life so dear or peace so sweet as to be purchased at the prices of chains and slavery?" He then answered his own question when he stated, "Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"
But these weren't the only people who were in fear of meeting together. Britain had appointed a Royal Governor over the state of Massachusetts and he not only took over the legislature but also forbid any kind of meetings without his approval. Therefore, in an effort to get around this law, people would casually gather together in small numbers under an old elm tree that stood in Boston Commons and there they would talk. To the English soldiers who stood nearby watching, it appeared that these men were simply chatting with one another as they enjoyed the day but, in reality, they were conducting meetings, in the open, in plain sight, as they continued to discuss and plot what they should do about England's infringement on their liberties. This group of men called themselves the Sons of Liberty and that elm tree became known as the Liberty Tree. In time, cities throughout the thirteen states started their own liberty tree tradition where men would gather together under the watchful eyes of the British soldiers, and hold political discussions about the tyranny of King George.
After the revolutionary war, when the colonists had secured their own independence, they wanted to make sure that the government they created would never be able to take away their right to freely speak their mind, especially on political matters, or to assemble together peacefully, or to present their grievances as England had done to them. That was the intent of the first bill of rights.
In 2002 Congress passed the Bipartisan Campaign Reform Act, commonly referred to as the McCain-Feingold bill, which prevents American citizens from putting out ads mentioning a candidate by name within 30 days of a primary and 60 days of a general election. The intent of this law was to get the corrupting influence of money out of political campaigns. However, on January 21, 2010 in the case of Citizens Untied VS the FEC, the Supreme Court ruled that such a provision was unconstitutional because it violated the First Amendment's right to free speech, stating, among other things, that the spending of money for ads was the equivalent of free speech and therefore could not be abridged or regulated.
The critics of this decision have said there is nothing in the Constitution that warrants such an interpretation and have accused the five justices who ruled in favor of this decision of rewriting the Constitution. Such critics have bitterly complained that this ruling was a gross miscarriage of justice and is an assault against the rule of democracy because it now allows large corporations to spend as much money as they want in an effort to sway the outcome of an election to their advantage. It is the contention of these critics that the duty of government is to insure that all citizens are treated fairly, which is what the Campaign Reform Act was intended to accomplish.
This case serves as an excellent example of and provides some value lessons in undertanding how the Constitution should be interpreted.
As we have already seen, in the late 1700's England had implemented laws that prevented the American colonists from gathering together to discuss their political concerns. The Campaign Reform Act of 2002 effectively did the same thing, at least as it applies 30 to 60 days before an election. The First Amendment clearly and unambiguously states that "Congress shall make no law… abridging the freedom of speech." To say that a person cannot speak their mind even one day before an election is an abridgment of their freedom to speak yet in 2002 Congress passed such a law.
It is argued that the Supreme Court has already upheld the constitutionality of Congress passing laws that limit what people can and cannot say but, while that is true, in nearly every such case the speech that was regulated would cause harm to someone or something. For example, to lie under oath is injurious to the rule of law and a defendant's right to a fair trial. To maliciously slander someone is to cause harm to their reputation. The purpose of government is to protect the rights of its citizens from harm and there is nowhere in any of the writings of the early Americans that indicate they thought that freedom of speech was meant to included lying and malicious slander. The intent of the First Amendment was to allow people to speak their mind freely without fear of government reprisal, not so they could do harm to others.
Allowing someone to express their opinion about a candidate 30 days before an election does no more harm than offering that same opinion 61 days before an election. If it is legal to offer an opinion 61 days before an election they it is an abridgement of our rights to make a law that prohibits us from making that same opinion up until the day of an election.
There are those who disagree with the Supreme Court's decision that free speech and money are the same. They argue that the Constitution only talks about speech as being free. The intent of the Campaign Reform Act was to get money out of politics so that special interests couldn't out spend the average person thereby limiting their influence in the election. Therefore, it is their contention that the Supreme Court read something into the Constitution that wasn't there.
However, to see if this is a valid argument, all we need do is look at history to see what those who wrote and ratified the Constitution intended for it to mean.
The colonists not only discussed their opinions verbally but they also published them in print, through the use of newspaper editorials, letters, pamphlets, and books. The British Parliament tried to prevent such publications from being printed by passing the Stamp Act which required that a taxed government stamp was to be placed on all newspapers, pamphlets, licenses, leases, and other printed material. In this way, the government could prevent written document they disagreed with from being published by not issuing the required stamp. This amounted to government controlled censorship.
To have something printed and then distributed costs money and to prevent someone from spending their own money to have their own opinions published, whether it is in print, put on a bill board, broadcast on radio or TV, made into a movie, or done as art is to restrict a person's right to express their thoughts. For all practical purposes, the Campaign Reform Act of 2002 is not much different than a stamp act because it requires the approval of the government to publish our opinions.
The fifty-five men who attended the Constitutional Convention in 1787 were delegates from twelve of the thirteen states (Rhode Island did not send any) and for nearly four months they hotly debated what kind of government they should create. When their work was finally completed on September 17, 1787 it was far from being the law of the land. For that to happen it still needed to be ratified by at least three-fourths of the states.
For the next nine months the legislatures of each state debated on whether to approve or disapprove the new form of government their delegates had created. Two of the states took more than a year to decide and even then, in some cases, it was approved by a margin of only ten votes. The biggest objection to the Constitution was that many people felt it gave the newly proposed Federal government too much power. What Americans wanted was freedom and they didn't want a government that had the power to take that freedom away from them.
What swayed several states to finally approve the Constitution was the promise of adding a bill of rights that would prevent the government from taking away certain, specific freedoms. The Constitution was deliberately designed so as to limit the power of the Federal government's ability to regulate what the American people can and cannot do or say. It is no coincidence that religion and speech were the first rights that were protected from government interference.
In clear and unambiguous language the Constitution states that "Congress shall make no law" that would either prohibit or abridge the rights of a person's religious beliefs or freedom to speak their mind. For our government to pass a law that forbids its citizens from spending their own money to express their political thoughts -- even for just 30 days -- violates the explicit intent that the American people had when they ratified the Constitution.
The counter argument is that this only applies to individuals but that corporations are not "people." Instead we are to consider them as non-human institutions. However, a corporation is nothing more than a group of people who have banded together to form a business venture. To say that only people can express their opinions but a group of people who form a corporation cannot is double-talk. To say that people can vote for someone based on their own special interests but corporations can't is a contradiction.
Another argument is that corporations can contribute much more money to a particular candidate than any one individual thereby giving them more political influence. The critics say that this dilutes the voice of the average person while allowing large corporations to have a much greater say in who is elected and who isn't. They further contend that this isn't fair and is undemocratic. It is their contention that the purpose of government is to make things fair, equal, and balanced, therefore they claim that the government not only has a right but a duty to protect its citizens from unfair influence. But this argument is flawed on many different levels.
In the early history of our country there were rich people as well as poor. As such, the rich have always been able to spend more money to publish their opinions than the poor. Yet, nowhere in any of the debates, either at the Constitutional Convention or in the state legislatures, did the American people debate the issue of rich versus poor, especially when it came to free speech, even though most of the delegates themselves were poor.
As already stated, corporations are made up of people who have grouped together to form a business venture. This isn't something new that just began in the last 50 years. The concept of corporations has been around for the last 500 years or more and our American ancestors were very familiar with this sort of practice. If limiting the influence of large corporations in the political arena was something they felt was a threat to their freedom of speech they certainly would have included it in the Bill of Rights but it isn't in there. That wasn't an oversight. It was deliberate.
Furthermore, in all the debates on the Constitution, the subject of the danger of undue influence from large businesses on political activity was never brought it. That means, it was never the intention of the American public to have their government control what businesses could or could not say or do. Their biggest concern was making sure that the government's power to regulate the affairs of the average citizen, including their businesses, was greatly restricted.
A corporation has just as much right to influence an election as anyone else. If a corporation is a group of people that can pool its money for the purpose of getting the public to vote one way, then average citizens have the same right to form a non-corporate gathering of people who can pool their money to influence the way people vote. There is nothing undemocratic about this kind of behavior. In fact, it is the essence of democracy.
To say that one group of people is not allowed to spend more money than another group of people is clearly unconstitutional. And if it is acceptable for the government to say that corporations cannot spend money either to support or argue against a particular candidate or issue, then there is nothing to prevent Congress from making a law that dictates how any other group of people can spend their money. This is precisely what the Constitution was meant to keep from happening.
But there is a larger flaw in this argument which is that money determines elections. It is clear that without money it is hard for an individual to run for office and that with more money a person is able to have their message gain greater exposure. But, to say that money is the deciding factor in winning elections is to say that whoever spends the most amount of money is the one who gets elected. If that's the case, then there is no need for people to vote.
There are numerous instances where candidates have spent many times more than their opponent and still lost the election. That's because people tend to vote on the issues, not on the amount of money people spend trying to convince them how to vote. For example, if a person runs on the idea that, if elected, they will make abortion-on-demand the law of the land, it doesn't matter how much money they spend to get their message out because recent history has shown that the great majority of people will not vote for someone who holds that view. If a candidate seeks to convince people of the value of having their taxes raised, they will lose the election regardless of how much money they spend.
This is why so many candidates say one thing when campaigning and then do something very different once elected because they know that if they tell the truth about their position they will not get elected regardless of what they've spent trying to get people's votes. Therefore, it is clear that money spent does not equal the winning of elections. To limit how much a corporation can spend on the basis that they have an unfair influence on elections is a false argument.
The idea that it is the duty of the Federal government to make things fair is an argument that is without any historical or Constitutional support. Although such an idea may sound like a noble thing to do, it gives the Federal government the power to regulate the conduct of its citizens in a way that is strictly prohibited by the Constitution.
In 1787 life in America was just as unfair as it is today and perhaps even more so. It is unfair for people to be slaves. It is unfair to keep women and slaves from having the right to vote. It is unfair for people to be segregated according to the color of their skin. All of these things existed when the Constitution was written and yet the American people at that time did not think it was the duty of their Federal government to force its citizens to behave fairly.
Just the opposite was true. As much as the Constitution limits the powers of the Federal government, there was a large minority of people who felt that it still gave the government too much power. This minority was so large that the Constitution we have today was nearly defeated because of them. To say that the powers of the government should be increased to regulate the behavior of the American people violates the wishes of those who voted to approve the Constitution.
If the American public wants to abolish slavery, give women the right to vote, and prohibit discrimination, there is a Constitutional way to do that. Article V allows for amending the Constitution by the voice of the people but nowhere does it allow it to be amended by the unilateral power of the government. This is how we were able to abolish slavery (XIII amendment) and give women the right to vote (XV amendment).
However, there are other things that are just as unfair that are perfectly acceptable. For example, in 1787, as in today's society, newspapers could print their own editorials for free while someone else was expected to pay to have their opinions printed in that same newspaper. The argument could be made that this is unfair but to say that it is the duty of the Federal government to eliminate unfairness in politics and business would mean that it has the power to force newspapers to print for free any and all opinions that they are asked to publish. No one in 1787 thought that their newly created government should have this right and that's why the first amendment states that "Congress shall make no law… prohibiting the free exercise thereof; or abridging the freedom of speech or of the press."
Although these arguments pertain to the 2010 decision of the Supreme Court concerning free speech they serve as an example of how to properly interpret the Constitution. Thomas Jefferson wrote, "On every question of construction [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
Many of the cases rendered by the Supreme Court have been made by a 5-4 decision. That means if just one of the justices had voted the other way, the final decision would have had the opposite effect. Since it is the people we elect to Congress and the White House who determines who sits as a judge on all the federal courts, they are the ones who must determine if those judges they appoint will interpret the Constitution according "to the probably one in which it was passed" or whether they will be "trying what meaning may be squeezed out of the text or invented against it."
This is why it is so important for us, as citizens of the Untied States of America, to be fully aware of the history of our Constitution, to properly understand why it was written, and not only know what it says but what it was intended to mean because if we don't we could lose more than just our freedom of speech.