This is the second part of a series of articles called “Know your constitution”. The first part may be viewed here
The Bill of Rights is the name applied to the first ten amendments to the Constitution. Created a year after the ratification of the Constitution, and ratified two years after that, the Bill of Rights, along with the remaining seventeen amendments that have been ratified, address individual citizens rights. Where the Constitution laid out the foundation upon which the government was built, the amendments provide the barriers to government actions affecting individuals. These are what we commonly refer to as our “Constitutional Rights”.
The preamble to the Bill of Rights reads as follows;
“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
These rights are recognized by the government’s prohibitions on infringement of them. That in itself is the very first level of interpretation. The tool for interpreting what our “rights” are is the knowledge of why the infringements were prohibited, in other words, “Why isn’t the government allowed to do these things?”. The answer comes from the reasons for the amendments, the Constitution, and the revolution itself. The writers had been oppressed by a tyrannical government, had risked thier lives and fortunes to free themselves from tyranny, and were not about to create another tyrannical government.
There is no significance applied to the order of the amendments, although to me it appears that the first few were indeed listed in order of importance. The first amendment reads;
“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”
From this we get the concepts “Separation of Church and State”, “Freedom of Speech”, “Freedoms of the Press” including censorship protections, and “The right to protest (or picket)”. The essential tools of revolution are protected in the very first amendment.
Looking for a moment at the interpretations of these rights, we can see some disparities between what is written, and what is interpreted. “Congress shall make no law respecting an establishment of religion” is generally interpreted to mean there should be no state religion, no “Church of America” or official religion as in other theocracies. Followed by “or prohibiting the free exercise thereof”, is taken to mean the government can not only not establish its own church, it cannot exercise any control of churches. It cannot control what religion you choose to follow, or how you follow it (as long as you do not harm anyone or break any other laws in the practice of your religion).
This is our first “problem”. Conflicting rights. What to do when your right to practice your religion conflicts with the governments right to pass laws restricting other behavior? A good case is Employment Division v Smith, in which an American Indian argued (and won) his position that the use of peyote was a sacrament of his religious beliefs. This opened the door for a number of frivolous cases attempting to protect otherwise illegal behavior as sacrament, which required a violation of the first portion of the amendment. Congress would have to make a law respecting the establishment of religion.
Supreme Court Justice Black observed for the majority of the Court in Everson v Board of Education, that “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church.” It should be self-evident that the exercise of federal power to define a church is equivalent to the federal establishment of a church.
It remains a sensitive area, which is why we have a Supreme Court, to judge individual cases. For most practical purposes, the court has deferred to the Internal Revenue Service in defining religions. The Internal Revenue Code makes no distinction among religions on its face, if it is administered or applied in such a way as to make sectarian discriminations among religions, the application would violate the Establishment Clause. Consequently, the statute must be interpreted so as to avoid an unconstitutional result. Thus the IRS definitions serve as a safe starting point in determining what is and is not a religion.
The preferred direction is to err towards freedom, using the simple rule from Kindergarten “Your rights end where my nose begins”
With the second right, “Freedom of Speech”, restrictions are easier to understand. “Falsely shouting fire in a crowded theater” is a metaphor for speech or actions made for the principal purpose of creating unnecessary panic. First stated in Oliver Wendell Holmes, Jr.‘s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant’s speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. Slander and other defamatory remarks are obviously not protected speech.
“Freedom of the press” faces the same restrictions, libel is an infringement on the rights of the libeled. Just this week charges against Courtney Love have made the news, as we test the limits of free speech in the age of Twitter.
“The right of the people peaceably to assemble” is tested every election year. Again, note the word “peaceably”. This does not mean throwing rocks at the police. Having survived the 2002 Republican National Convention, I might argue that “peaceably” should include “bathed”, I didn’t mind when the protesters blocked traffic as much as I minded having to smell them in the subway. The Federal government is walking a fine line with HR 347, which opened (or closed) a new area in a post 9/11 world. Prohibiting access to any area protected by the Secret Service is open to vague interpretations of prohibiting protest, which will no doubt be argued before the Supreme Court in the future. The argument will remain, “was assembly prohibited, or just assembly in a particular place?”
The last section, “the right to petition the Government for a redress of grievances”, is the very function of the Supreme Court. It is our opportunity to address misinterpretation of the law by the government and abuses of power.
This is our first set of freedoms, the right to believe as we wish, to talk and write about those beliefs, to join together and discuss our beliefs, and to have an avenue of redress if any of these rights are abridged. The essential tools in fighting oppression.
The next section covers the second and third amendments.