The Original Bill of Rights

On September 25, 1789, state legislatures were presented with twelve amendments drafted by James Madison for addition to the Constitution. Ten of those twelve amendments, numbers 3 through 12, were ratified and employed by the federal government on December 15, 1791, thus becoming the United States Bill of Rights (Jordan).

The Bill of Rights acted as a compromise between the federalists and anti-federalists to ensure the Constitution’s ratification (Bill of Rights Institute Staff, “Bill of Rights”). Anti-federalists argued that the Constitution did not protect the basic principles of human liberty, prompting the creation of the Bill of Rights (Jordan). The First Amendment, affirming the importance of religious freedom, the freedom of speech, and the freedom of the press, stipulated that “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” (US Const. Amend. I). Consequently, the government was barred from prohibiting a religious practice or favoring one religion over another, and from controlling what its citizens can or cannot say (History.com Editors).

Although the First Amendment is vague regarding the limits of freedom, restrictions must necessarily have been anticipated. The framers of the constitution left the intention behind the documents unclarified. Alexander Hamilton held that the Constitution should be self-explanatory and self-regulating while Thomas Jefferson believed that ambiguities in the Constitution should be open to interpretation by the states (Davis). However, the amendments were specifically drafted to prevent governmental encroachment on individual liberties. James Madison, who drafted the amendments, sought to protect citizens’ rights from government infringement (Bill of Rights Institute Staff, “Bill of Rights”). The First Amendment avers citizens’ right to freedom of speech (“History of the First Amendment”). Madison likely meant to secure people’s authority to criticize the government without fear of incarceration (Tanizaki). The First Amendment aimed to defend people’s freedom of expression on the basis that America would stand as the land of the free. The tests to these individual liberties protected by the First Amendment came later in the Supreme Court through cases such as “Schenck v. United States” and “Reynolds v. United States”, which redefined the First Amendment by introducing limits to each of the individual liberties.

Throughout the early 19th century, the First Amendment and the Bill of Rights overall saw negligible attention (“History of the First Amendment”). Not until 1878, with the court case “Reynolds v. United States”, did the Supreme Court decide to reconsider the First Amendment and religious freedom. George Reynolds, a resident of Utah and a member of the Church of Jesus Christ of Latter-day Saints, was tried due to his practice of polygamy and having more than one wife. In Utah, bigamy was unlawful (Bill of Rights Institute Staff, “Reynolds v. United States(1879)”; Georgetown University).

Every person who, having a living spouse, marries another – whether married or single – in a territory or other place over which the United States has exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years. (Bill of Rights Institute Staff, “Reynolds v. United States (1879)”)

Reynolds’ actions were clearly illegal. It was customary for the leaders of The Church of Jesus Christ of Latter-day Saints to engage in polygamy. As part of his defense, Reynolds claimed that as a Mormon, he was required to have multiple wives (Georgetown University). He argued that the law against polygamy was infringing upon his First Amendment right to freely exercise his religion. Ultimately, the Supreme Court convicted him (Bill of Rights Institute Staff, “Reynolds v. United States (1879)”). The Court maintained that “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order” (“Reynolds v. United States,” 164). While they could permit the belief in polygamy, the action itself was considered an offense (Bill of Rights Institute Staff, “Reynolds v. United States (1879)”).

The “Reynolds v. United States” court case helped the Supreme Court place limits on religious liberty (Bill of Rights Institute Staff, “Reynolds v. United States (1879)”). The court concluded that religion was not an excuse to break the law. People could freely practice religion, but this did not place a person above the law. If a crime was committed in the name of religion, the perpetrator would not be exempt from punishment (Georgetown University).

“Can a man excuse his illegal practices… because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances…” (“Reynolds v. United States,” 166-167)

The court argued that if a man were pardoned from punishment just because the crime was considered normal within a religion, it would make “religious belief superior to the law of the land” (“Reynolds v. United States,” 166), which could incite chaos and potentially unravel America into anarchy, as everyone would be considered above the law (Georgetown University).

Another important aspect of the First Amendment is the freedom of speech (History.com Editors). The court case, “Schenck v. United States,” helped the Supreme Court establish limitations on freedom of speech. In 1917, The United States had just entered World War I (Editors of Encyclopedia Britannica). Many Americans disagreed with the decision to enter the war after several years of remaining neutral. To curtail any interference from Americans who opposed the war, Congress passed the Espionage Act of 1917 (“Schenck v. United States (1919)”).

Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies…[or] willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States. (“Espionage Act of 1917” 219)

This made it illegal to interfere with military operations, as well as openly discouraging Americans from turning against the government (“Schenck v. United States(1919)”). Charles T. Schenck was a socialist anti-war activist. He was against the military draft and mailed out over 15,000 pamphlets, encouraging men to resist the draft, openly defying the government (Editors of Encyclopedia Britannica). Schenck was arrested soon after for violating the Espionage Act by interfering with military recruitment and was sentenced to 30 years in prison. His lawyer argued that Schenck was merely using his right to freedom of speech, as stated in the First Amendment. On March 3, 1919, the Supreme Court convicted Schenck and upheld the Espionage Act (“Schenck v. United States(1919)”).

This case helped the Supreme Court rule that the freedom of speech guaranteed by the First Amendment could be restricted if the speech is creating a “clear and present danger” (“Schenck v. United States”). Supreme Court Justice Oliver Wendell Holmes Jr claimed that:

“Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.” (Holmes 249 U.S. 51.)

This showed that while individual liberties are important, the Supreme Court must prioritize national safety over individual rights. By breaking the law and acting against the safety of the nation, one’s individual liberties are forfeited.

The First Amendment has many different elements, including freedom of speech, religion, and the press (History.com Editors). It can be interpreted in different ways, and through court cases such as “Reynolds v. United States” and “Schenck v. United States”, the Supreme Court has clarified and also added many new parts to the amendment. For example, the practice of polygamy has been outlawed, signifying that religious belief is not above the law (Editors of Encyclopedia Britannica). This helps the Supreme Court place limitations on the extent of freedom and identify when or when they cannot interfere. With the world changing, we can no longer just stick to the vague original definition, and the First Amendment has and will continue to evolve in definition.

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