Thursday, July 29

The Architecture Of Liberty And The First Amendment

As strange as it will probably sound coming from me, in the 6 years (as of this month) writing my “Skeptic’s Collection” column for Beguine, I have never published a “Skeptic’s Collection ” column dedicated exclusively and entirely to the First Amendment. I have alluded to it, hyperlinked to it, but never written about the entire First Amendment. That is as strange as a devout Christian never quoting John 3:16 or an observant Jew never mentioning the sh’ma or a devout Muslim never referring to the shahada. So I am going to remedy this egregious omission.

I like to use an architectural analogy vis a vis the First Amendment. The First Amendment partakes of the spare elegance of a Doric temple. The First Amendment is founded on the Enlightenment principle, newly rediscovered in the 15th / 16th centuries, of the competence of autonomous human reason to contemplate scientific, social, political, and philosophical issues free of religious restrictions. The “roof” of the First Amendment comprises the enterprise of intellectual liberty and inquiry logically implied thereby.

In between the foundation (I believe stylobate is the correct technical architectural term) and the roof (pediment) — both implicit in the Constitution as a whole — are the three great Pillars / Columns of the First Amendment’s austere Doric architecture: the “establishment” clause, the “free exercise” clause, and the “abridgement” clause (which itself comprises three “sub-Pillars” or sub-clauses ... more on that later).

In what follows, I will attempt to avoid a mistake I have made in the past regarding writing about the First Amendment:  getting lost in the nuances of history and case law.


Congress shall make no law respecting an establishment of religion …

But sometimes, nuance is critically important. Note that the “establishment” clause does not say “Congress shall make no law establishing an official church or an official religion”. In fact, it does not even say “Congress shall make no law respecting the establishment of religion … “. The words "respecting" and "an" are critical. Let's consider them in that order. “Respecting” is critical. The implication is that, not only shall Congress not explicitly establish an official church or an official religion. “Respecting” rules out any favoritism whatsoever, any flirtation, however brief and subtle, with any type of religious or doctrinal favoritism, irrespective of however subtly grounded and indirect. The laws of the Nation are not to be religion-hostile – see below about the “free exercise” clause – but they are to be uncompromisingly religion-neutral. Next, consider the "the". The “the” is important because the definite article "the" could imply that the prohibition of "establishment" would only pertain to one, specific, particular form of religious favoritism. The use of an indefinite article – “an” -- implies that what is prohibited by the “establishment” clause is – again – not merely one type or variety of religious bias, but all forms whatsoever. Think of it this way: if I say "Please bring me the book," you may presume that I am referring to one particular, specific book: such is the implication of the definite article "the"; but if I say "Please bring me a book," my use of the indefinite article "a" implies that any one of several books would fulfill my request. Similarly, "an" is an indefinite article: it prohibits any and all state favoritism toward any religion, religious practice, or religious doctrine.

Conservatives often respond in two ways:

o "America is a Christian nation"

This is true, but strictly in a statistical sense. The last statistics I saw said that somewhere around 75 percent of Americans are of one variety of Christian or another. But the question is not "What is statistically the case?" but "What is constitutionally permissible?" Only the latter is relevant vis a vis the First Amendment. Even if 99.9% of the Nation were Christian, that would not suffice to overrule the "establishment" clause and make America a Christian nation, constitutionally.

o "The Founders were religious men who recommended religious belief"

True ... though to what degree, e.g., Messrs. Jefferson, Franklin, and Paine were "religious" is open to debate. (Mr. Paine continually complained that as a far-left Anglican, he was always being accused of atheism.) But the fact that the Founders personally recommended religious belief and observance does not mean that that personal preference has the force of the US Constitution. Personally, I think Uno's pizza is the best, but that does not mean eating Pizza Hut pizza ought to be legally, least of all constitutionally, mandatory, The Founders were meticulously careful to avoid writing their personal preferences and recommendations into fundamental law.

There is a long history whereby the Supreme Court has grappled to define the precise meaning of what constitutes "establishment". For example, does allowing school buildings and property to be used for religious instruction violate the "establishment" clause? (Answer: yes.) Does it violate the "establishment" clause for school funds to be used to purchase textbooks for religious schools? (Answer: if the books are for secular subjects like math and physics, no; if the books are, e.g., catechetical texts, yes.) Does the recitation of prayers, written by school authorities, by school children violate the "establishment" clause? (Answer: yes ... however, there is no prohibition of private, personal prayer by students. In this latter sense, fundamentalists are simply being hysterical in their insistence that "God was thrown out of schools". Same with personal, individual Bible study by students. Individuals can still pray in schools as individuals. What they may not do is impose that prayer on others not of their faith. What is forbidden is an official prayer, written by school officials and / or school boards, the recitation of which is required by students. Besides, fundamentalists and religious conservatives should reflect on whether a God Who is small enough to be thrown out of schools is really a God Who is worth bothering with, anyway.)

Very often, when I discuss the "establishment" clause, especially with conservative evangelical Christians, they point out that the "establishment" clause specifically forbids Congress, i.e., the Federal legislature, from establishing a religion. So why should the several States not have the option of doing so at the State level? The answer is surprising: Once upon a time, States could do precisely that -- establish an official State church. (Even then, however, the co-equal "free exercise" clause [see below] guaranteed religious people the right of observance to other religious groups not similarly favored.) In fact, in the early 1800s, the States of Massachusetts and Delaware briefly made the Congregational church the official State church. (This decision by the Delaware State legislature prompted the Delaware Baptist association to write to recently elected President Thomas Jefferson asking if their religious rights in Delaware were about to be abridged. President Jefferson, in his famous, "wall of separation" letter, emphatically replied in the negative: the rights of Delaware Baptists were guaranteed by the co-equal "free exercise" clause.) I say "briefly" because the tradition of religious liberty in the United States, proved too overwhelmingly strong to allow these State statutes to stand.

Furthermore, in 1925, the case of Gitlow vs. United States interpreted the "abridgement" clause guarantee of freedom of speech and press in the context of the "equal protection" clause of the 14th Amendment in such a way that anything the Federal government cannot do, the States are likewise prohibited from doing. The reasoning in Gitlow was equally applicable to the "establishment" clause. This practice of viewing the "establishment" clause through the lens of the "equal protection" clause of the 14th Amendment began what constitutional scholars and lawyers now refer to as "incorporation." Once the "incorporation" ball started rolling, most of the other provisions of the Bill of Rights were similarly incorporated against the States, the latest such being the incorporation of the Second Amendment against the States by McDonald vs. Chicago in 2010. (The right to the individual ownership of firearms was held to be a fundamental right by the DC v. Heller decision in 2008.) Prof. Akhil Reed Amar of Yale gives an excellent account of the history of incorporation via the 14th Amendment in his magisterial book The Bill of Rights: Creation and Reconstruction.

See what I mean about the tendency to get lost in history and case law when discussing the First Amendment?

... or prohibiting the free exercise thereof.


Similar remarks apply here. Almost the entire range of religious belief and practice is subject to First Amendment protections, regardless of what proportion of the population engages in these beliefs and practices. I am told by friends that even ordination certificates marking one as a member of the clergy of the First Church of the Flying Spaghetti Monster is subject to "free exercise" protection. The Supreme Court ruled in the Barnette case in West Virginia, that Jehovah's Witness school children cannot be required to recite the Pledge of Allegiance, since such recitation would violate the beliefs and practices of Jehovah's Witnesses by restricting the Witnesses' "free exercise" prerogatives.

There are limitations, however. Obviously, religions that practice child sacrifice and require the ritual slaying of virgins are not protected. One particularly thorny issue, in the middle 1800s, was the matter of whether the Constitution requires polygamous marriages contracted by Mormons in Utah to be legally recognized as valid marriages by the other States of the Union. The question is: does the "full faith and credit" clause of Article IV, Section 1, of the Constitution require that other States grant the same legitimacy to polygamous marriages that is granted to such marriages in Utah? (Polygamous marriages have since been renounced by mainline Mormon churches.) Back in the middle 1800s, non-Mormon States routinely granted "public policy exceptions" exempting them from such recognition. Before the renunciation of polygamous marriages, Mormons often reacted by asserting that such non-recognition of polygamous marriages amounted to a violation of the "free exercise" clause of the First Amendment.

Again, see what I mean about not getting lost in nuance and case law?


o ... 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.

o ... freedom of speech ...

It would be possible to make a very substantive career as a constitutional scholar elucidating all the nuances of these three words. Suffice to say that, while much speech is protected, not all speech enjoys such. You are free to distribute campaign, and even religious, literature on sidewalks and street corners. Your freedom to do so in, e.g., airport concourses is more restricted. Why? Because airport concourses are not primarily places intended to provide fora for political or religious discourse: people have places to go and flights to catch, and that purpose might well be compromised by the added congestion attending leaflet distribution. You have a First Amendment / "free speech" right to address city councils, school boards, etc., but councils and boards have the right to draw up lists of speakers, because such meetings are not intended as free-form venues for just any kind of speech by just anyone about just anything. First Amendment scholars, in fact, have drawn up classifications, based on case-laws precedent, of the various types of venues where free-speech rights can be exercised -- and the corresponding restrictions to which these venues are legitimately subject. Free speech does not mean chaotic speech -- in most cases. Furthermore, proposed restrictions on free speech based on content are almost always subject to a strict-scrutiny level of judicial review -- and usually ruled unconstitutional. The state can use its "police power" to restrict how loudly your amplifiers can be turned up, i.e., how loudly you can say what you say, but may not use that power to regulate the content of your speech, i.e., what you say.

o ... freedom of the press ...

Similar remarks apply to the "freedom of the press" sub-clause of the "abridgement" clause. And again, content-based restrictions on freedom of the press are almost always examined with a strict-scrutiny level of judicial review, and therefore usually held to be unconstitutional. Regarded with an especially jaundiced eye are instances of "prior restraint," i.e., forbidding the appearance of material prior to its publication. This is the tactic that was used in the Nixon Administration's attempt to block publication of the Pentagon Papers in the early 1970s. The Administration argued that such publication would compromise national security, despite the fact that most of the material dated from at least ten years earlier. The Supreme Court held that any such prohibition would amount to an unconstitutional exercise of prior restraint. Virtually the only cases where prior restraint would be justified would be, e.g., publishing classified data on weapons systems or of military tactics during wartime.

o ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This third and final sub-clause of the "abridgement" clause is also known as "freedom of association" or "freedom of assembly". Alexis De Tocqueville, in his classic work Democracy in America, expresses amazement at the multiplicity of non-governmental / non-political organizations Americans have evolved, e.g,, the Elks, the Rotary, the Odd Fellows, the Freemasons, etc, -- in other words, the welter of voluntary associations for various educational, social, and benevolent purposes quite apart from government participation, mandate, and action. The only crucial qualifier in the "freedom of assembly" sub-clause is "peaceably". So the government may legitimately curtail, e.g., lynch mobs, torch-light parades to intimidate Jews (Charlottesville and "nice Nazis", anyone?), because such gatherings are intrinsically anything but "peace[able]".

James Madison

Perhaps the most salient lesson we can draw from all these examples is the reciprocal relationship between (a) constitutional rights and (b) their corresponding responsibilities. Without exception, all the rights in the Bill of Rights are accompanied by corresponding moderate and common-sense restrictions and qualifications. E.g., freedom of speech, yes, but no false yelling of "Fire!" in a crowded theater; freedom of assembly, yes, but no lynch mobs; freedom to own a gun, yes, but only those guns the Supreme Court has ruled are customarily used for hunting and for personal protection, and businesses, e.g., Starbucks and churches, have a corresponding right to allow or to forbid the open carry of weapons into those places. If Second-Amendment fundamentalists had their way, falsely yelling "Fire!" in a crowded theater would be protected speech. Lynch mobs would be a protected form of citizen association.

Finally, I would note something that I have never heard anyone remark on in any context: the First Amendment as literature. The First Amendment is not only great law, it is great literature. The First Amendment was probably the product of the editorship of James Madison, a master craftsman of the English language. Recite it verbally sometime and delight yourself in the sheer grace and cadence of the language. James Madison redacted the First Amendment into existence from several similar proposed amendments, written by several authors at State ratification conventions, and in doing so employed an intimate familiarity with the English language seldom equaled, and never exceeded, by any subsequent author. Mr. Madison's First Amendment is a masterpiece of conciseness coupled with elegance of diction. The First Amendment is elegant in its austerity and austere in its elegance.

I would make bold to conclude by asserting that the blood and violence of the religious wars of the 16th and 17th centuries were well worth it, tragic though they were, because all that insensate violence nevertheless culminated in the stunning flower of the of the US Constitution in general and of the First Amendment in particular. The First Amendment should be every American's secular equivalent of John 3:16, the sh'ma, and the shahada -- loved with equal passion and guarded with equal vigilance.

James R. Cowles

Image credits

Constitution … Pixabay … Public domain
Newseum … DBKing … Creative Commons Attribution 2.0 Generic
Cooley's treatise … Wikipedia … Public domain
Rotary Club Presentation … Marines web site … Public domain
James Madison … White House … Public domain
Doric temple … … Public domain

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