Considering the First Amendment

©2003 Mark Pitrone

Article the third [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.”

Much has been said about the first amendment to the Constitution for the united States of America. Many have been wrong. Oh, I suppose everyone who’s ever written on it thinks he has the only correct outlook towards the subject, but most of the commentators I’ve read have never looked at the historical context of the Article. Thomas Jefferson wrote:

“On every occasion…[of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed.” (June 12 1823, Letter to William Johnson).

One must look at the Declaration of Independence to get the context of the Constitution and Bill of Rights. Most commentators just look at what the Supreme Court has opined on the subject, never even considering that the Supremes are overstepping their Constitutionally granted authority every time they interpret our Constitution and Bill of Rights. Nor do they usually look to see what the words our founders used actually meant when they were written – English is a living language, after all, and some of the meanings have changed.

Let’s look at Amendment 1 clause by clause for its grammatical and historical context. “Congress shall make no law…” Supreme Court case after Supreme Court case has interpreted this to mean that NO government at any level may make a law in these regards. But what did the founders mean when they said Congress? When the Declaration was signed they meant when the states sent their representatives to gather for a purpose of mutual interest. From the Declaration:

“We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.”

Webster’s 1828 Dictionary, ”The American Dictionary of the English Language”, the work that standardized American English (hereinafter referred to as Webster’s 1828), has this to say about:

“CONGRESS, n. [L., to come together; to go or step; a step. See Grade and Degree.] 1. A meeting of individuals; an assembly of envoys, commissioners, deputies, &c., particularly a meeting of the representatives of several courts, to concert measures for their common good, or to adjust their mutual concerns.”

Did you notice that the representatives were in ‘Congress, assembled?’ Congress merely meant a meeting of mutual self-interest to the several states. That was also all it meant to the framers of the Constitution and Bill of Rights. To extend to the governments of the states, counties, cities and townships those restrictions that were placed on the general government is to place strictures where the people and the state governments never meant to place them. Therefore, Constitutionally, the fight in Alabama over the placement of the 10 Commandments monument was moot. The Congress didn’t place the monument. The judge did. He was within his authority to do so and the Federal Courts should have stayed out of the fray, as they had no Constitutional jurisdiction.

“…respecting an establishment of religion, or prohibiting the free exercise thereof; …” Webster’s 1828 says this respecting:

“RESPECT’ING, ppr. Regarding; having regard to; relating to. This word, like concerning, has reference to a single word or to a sentence. In the sentence, “his conduct respecting us is commendable,” respecting has reference to conduct. But when we say, “respecting a further appropriation of money, it is to be observed, that the resources of the country are inadequate,” respecting has reference to the whole subsequent clause or sentence.”

So Congress could legislate NOTHING that would relate to an establishment of religion. What is meant by the word ‘establishment?’ In most instances it means to found, ratify or ordain a thing for use. Webster’s 1828 indeed uses these very words to describe the literal meaning of the term. But further down the list of definitions is this rather interesting entry:

“6. The episcopal form of religion, so called in England.” Webster’s further defines “EPIS’COPAL, a. Belonging to or vested in bishops or prelates…”

Since the clause refers to religion, I would think the only definition having to do with religion is probably the one the founders intended. They told Congress that they could not set up any religion with an episcopal form of government; i.e., an hierarchical government by decree from above. In other words, the government was not to create a state religion that made pronouncements as from on high, as was the case in ALL of Europe, and especially in England.

Remembering that Webster’s 1828 defined American English and that Mr. Webster was among the founders and from their era, we can assume that his definitions are almost, if not quite, exactly what the founders meant in their choice of terms. With that in mind, look at this rather lengthy entry for

“RELIGION, n. relij’on. [L. religio, from religo, to bind anew; re and ligo, to bind. This word seems originally to have signified an oath or vow to the gods, or the obligation of such an oath or vow, which was held very sacred by the Romans.]

1. Religion, in its most comprehensive sense, includes a belief in the being and perfections of God, in the revelation of his will to man, in man’s obligation to obey his commands, in a state of reward and punishment, and in man’s accountableness to God; and also true godliness or piety of life, with the practice of all moral duties. It therefore comprehends theology, as a system of doctrines or principles, as well as practical piety; for the practice of moral duties without a belief in a divine lawgiver, and without reference to his will or commands, is not religion.

2. Religion, as distinct from theology, is godliness or real piety in practice, consisting in the performance of all known duties to God and our fellow men, in obedience to divine command, or from love to God and his law. James 1.27.

3. Religion, as distinct from virtue, or morality, consists in the performance of the duties we owe directly to God, from a principle of obedience to his will. Hence we often speak of religion and virtue, as different branches of one system, or the duties of the first and second tables of the law. Let us with caution indulge the supposition, that morality can be maintained without religion.

4. Any system of faith and worship. In this sense, religion comprehends the belief and worship of pagans and Mohammedans, as well as of christians; any religion consisting in the belief of a superior power or powers governing the world, and in the worship of such power or powers. Thus we speak of the religion of the Turks, of the Hindoos, of the Indians, &c. as well as of the christian religion. We speak of false religion, as well as of true religion.

5. The rites of religion; in the plural.” (emphasis added)

Notice that the first 3 definitions of religion are obviously speaking of the Judeo-Christian religion, or, at least, its core tenets. This is further proven by the reference to the other great religions in definition 4. Notice also that the implication, by like placement in parallel sentences, is that the other religions are ‘false religion’, while the Christian religion is by implication ‘true religion’. Pop culture notwithstanding, that is the Constitutional sense of religion.

“… or prohibiting the free exercise thereof; …” Congress can also make no law prohibiting the free exercise of religion. So in a church setting anything goes, as long as it is within the tenets of that religion. While I seriously doubt that any Christian denomination would espouse such a practice, if a church wanted to use peyote or methamphetamine in its worship, the congregants are completely within their rights and the general government has no say in the matter unless their ‘free exercise’ infringes some other right held by another person.

Also, in reference to free exercise, notice that conspicuous by its absence is any reference to public officials making religious statements, or the Constitutional prohibition of same. Even our Constitutionally challenged Supreme Court has held that private individuals can, of right, pray in public, even in state sanctioned affairs like public high school graduations. Of course, the high schools have now taken to censoring the valedictorian and salutatorian speeches for political correctness, including religious references. But let a public official try praying or make reference to the Bible, and listen to the howls of intolerance and hatred being spewed by the intolerant hate police. This prohibition on public officials use of religious references has been created ex nihilo by the same Constitutionally challenged Supremes, even as they’ve been misguided down the false path by spurious and specious arguments of the aforementioned intolerant hate police.

“…or abridging the freedom of speech, …” The question arises, “To what speech are they referring?” I believe it refers to political speech, not that we are free to say anything we please at any time we please to. We are not free to say something that would put other people in danger or that is intended to incite a riot or other such thing injurous to society. Nor are we given carte blanche to lie or slander someone, as our political and sometimes our religious leaders have done. The Declaration refers to the abridgement of free speech:

“He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people,”

and,

“In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury.”

Actually, the Declaration, in its entirety, is an exercise of free speech that was unheard of in English culture. As Ben Franklin said at the signing they had better all hang together, or most assuredly they would all hang separately. No one could talk to a king that way and get away with it. There was no truly free speech in England.

And it’s getting to be that way here in America. It is almost a capital offence to speak out against the war in Iraq, or the President, or the draconian steps the general government has taken to provide a bit of ‘Homeland Security.” If you don’t agree, you are potentially a terrorist. George III is salivating as he looks up from Hell for the power that the Executive has usurped from the Congress and the people. Our free speech rights have certainly been abridged. Webster’s 1828 says this about:

“ABRIDGE’, v.t. abridj’, [G. short, or its root, from the root of break or a verb of that family.]2. To lessen; to diminish; as to abridge labor; to abridge power of rights. 3. To deprive; to cut off from; followed by of; as to abridge one of his rights, or enjoyments.”

Political correctness is all about abridging free speech.

“…or of the press; …” Congress can’t legislate away the freedom of the press. And they haven’t done so. Instead, they’ve created a press kennel that hangs around the legislative and executive dining rooms whining and begging for the crumbs that fall from their master’s tables. Most major media reporters have lost touch with the term ‘investigative reporting.’ They hang around waiting for the handouts and ‘leaks’ that come their ways at the most opportune (for the politician) times, and print the ‘spin’ on the news as if it were the truth. In biblical terminology ‘spin’ is pronounced ‘wicked’, meaning a bit of truth is twisted like a candle wick. The only way to get unadulterated truth anymore is to carefully surf the web’s alternative news and commentary sites – like Liberty-Rising.com – and gleaning the truth from the ‘spin’. In other words, you have to do the work, because the major media outlets are too lazy or too dependent on government handouts to do any of it for you.

“… or the right of the people peaceably to assemble, …” Congress can’t tell you that you can’t gather peacefully to protest, pray or otherwise receive public reinforcement of your beliefs or support for your cause. If they do they violate this Amendment. In short, these last 3 clauses state that the government can’t tell you what to say or keep you from saying it in whatever venue you decide to say it, between you and one other or between you and a million others, in print or on the street or in the airwaves or any other venue. Of course, don’t try to tell that to the peaceful protesters who gathered to protest abortion and to pray for the Constitutionally challenged Supreme Court Justices on the night before their new session began. There were numerous arrests for the crime of carrying a protest sign. In fact, the USA PATRIOT and Homeland Security Acts have provisions to make a gathering of more than 2-3 people illegal. Both are blatantly unconstitutional, but the average American is too busy watching ‘reality’ shows and ‘Law and Order’ on TV to care. All we want is to be entertained. Thinking is too much like work.

“…and to petition the Government for a redress of grievances.” Webster’s 1828 says,

“PETI’TION, n. [L. petitio, from peto, to ask, properly to urge or press.] 2. A formal request or supplication, verbal or written; particularly, a written supplication from an inferior to a superior, either to a single person clothed with power, or to a legislative or other body, soliciting some favor, grant, right or mercy. 3. The paper containing a supplication or solicitation. Much of the time of our legislative bodies is consumed in attending to private petitions. The speaker’s table is often loaded with petitions (author’s note – remember this was in 1828, not today). Petitions to the king of Great Britain must contain nothing reflecting on the administration.”

Congress has never taken away your right to circulate a petition, or to petition them or the executive. Indeed, I have seen and even signed numerous petitions to congress, presidents and the Supremes over the years. Have you ever written your Congressman, or phoned his office to advise him of your wishes on a particular vote or issue? That is a petition.

However, do you really think you or I sway them to do something with which they don’t agree, or which they didn’t manipulate you and me into petitioning for in the first place? I have written my Congressman at least 30 times in the last 2 years. He is always good about returning my correspondence. When he agrees, he is very bold in his statements as to the righteousness of his position. When he disagrees he mealy-mouths his way around telling me how he’ll vote on the issue. My petitions mean nothing to him, really. All they tell him is how he’ll probably do in the next election. He thinks.

Let’s see what the Declaration had to say about these last 4 clauses; free speech, press, assembly and redress:

“He has refused his assent to laws, the most wholesome and necessary for the public good.
He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.
He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.
He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.
For cutting off our trade with all parts of the world:
In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.”

Well, nothing there relates to the press, but connections can be made to all the rest. The first Amendment, as well as the rest of the Bill of Rights, was included to make our general government incapable of becoming another despotism like we’d just left. The fathers had the Declaration in the room with them for referral the whole time. They wanted to be sure to address all the wickedness of the British monarch and ensure that no such thing would happen here.

I think they would be shocked to see what we’ve allowed our general government to become, a two-bit despotism that George III could only dream about.

“We were endowed by our Creator with certain unalienable rights” (see my article on that subject), and a few of them are enumerated. But that enumeration does not proscribe any other rights, and neither can any legislation by any governmental body. Rights are given by our Creator and can’t be abridged, infringed or in any way diminished or aliened by anyone but the grantor – our Creator. We created the government and therefore it derives its powers and rights from us. It has no jurisdiction over sovereign citizens or states that those citizens and states didn’t grant, and which those citizens and states can’t repeal.

It’s time we did.

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