The Founders' Intent for the First Amendment

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.

...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.

...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.

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?

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.

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.

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.