The Original Bill of Rights

On September 25, 1789, the state legislatures were presented with twelve amendments drafted by James Madison to add to the Constitution. It was on December 15, 1791 that ten of the twelve amendments, number 3 through twelve, were ratified and employed by the federal government, becoming the United States Bill of Rights (Jordan). The Bill of Rights acted as a compromise between the federalists and anti-federalists to get the Constitution ratified (Bill of Right Institute Staff, “”Bill of Rights””). The anti-federalists argued that the Constitution did not protect the basic principles of human liberty and thus the Bill of Rights was created (Jordan). The First Amendment discusses the importance of religious freedom, the freedom of speech and the freedom of the press as stated as “”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). This meant that the government could not prohibit a religious practice or favor one religion over another. It also could not control what its citizens can or cannot say (History.com Editors).

Although the First Amendment is vague with the limits of freedom, there must obviously have been restrictions. The framers of the constitution never made the intention of the documents obvious. Alexander Hamilton believed that the Constitution spoke for itself and that the text should control itself while Thomas Jefferson thought that whatever was not clarified in the Constitution, the states would be able to interpret it in the way they saw fit (Davis). However, the amendments were written specifically to prevent the government from infringing on individual liberties and protecting them. James Madison who drafted the amendments had the intention of safeguarding the rights of the people from the government (Bill of Right Institute Staff, “”Bill of Rights””). The First Amendment states that people have the right to freedom of speech (“”History of the First Amendment””). He most likely intended for people to have the right to criticize the government without the fear of imprisonment (Tanizaki). The First Amendments intent was to protect people’s freedom of expression on the basis that America would be the land of the free. People’s individual liberties as protected by the first amendment were later tested in the Supreme Court through cases such as “”Schenck v. United States”” and “”Reynolds v. United States”” which have redefined the meaning of the First Amendment by placing limits on each of the individual liberties.

Throughout the early 19th century the First Amendment and the Bill of Rights as a whole was mainly ignored (“”History of the First Amendment””). It wasn’t until 1878 through the court case, “”Reynolds v. United States”” did the Supreme Court decide to reevaluate the first amendment and religious freedom. George Reynolds was a resident of Utah and and a member of the Church of Jesus Christ of Latter Day Saint (Bill of Rights Institute Staff, “”Reynolds v. United States(1879)””). He was being brought to trial due to engaging in polygamy and having more than one wife. In Utah, it was illegal to be married to two different people (Georgetown University).

Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have 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)””)

It is clear that what Reynolds was doing was illegal. It was custom 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 the law against polygamy was infringing upon his First Amendment right to freely exercise his religion. In the end, the Supreme Court convicted him (Bill of Rights Institute Staff, “”Reynolds v. United States(1879)””). They argued 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 allow the belief of polygamy, the action itself would be considered an offense (Bill of Rights Institute Staff, “”Reynolds v. United States(1879)””).

The “”Reynolds v. United States”” court case managed to help 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 were allowed to freely practice religion but that did not put a person above the law. If a person committed a crime in the name of religion, they 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 in the norm of a religion then that would make “”religious belief superior to the law of the land”” (“”Reynolds v. United States”” 166) which would cause chaos, and eventually unravel America into anarchy because everyone would be above the law (Georgetown University).

Another important aspect of the First Amendment was the freedom of speech (History.com Editors). The court case, “”Schenck v. United States”” helped the Supreme Court establish some 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 of entering the war after several years of remaining neutral. To make sure that there was little interference with the 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 to turn 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 using his right to his 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 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 an individuals rights. By breaking the law and acting against the safety of the nation, ones 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 when or when not they can 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 its definition.

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