First Amendment

What is the First Amendment?

The First Amendment, as with the rest of the federal Bill of Rights, is a superfluous restraint on federal power. The First Amendment does not change or modify the Constitution in any way. Nowhere in Article 1, Section 8 or anywhere else in the United States Constitution does Congress have the power to establish a national church, or to abridge the free exercise of religion, or to abridge the freedom of speech or of the press, or to abridge the right of the people to peaceably assemble and petition the federal government for a redress of grievances. However, the First Amendment was ratified as an additional fail safe, just in case Congress came up with some crazy ideas and started passing laws outside the scope of its Enumerated Powers.

Meaning of First Amendment

The First Amendment explicitly restrains the power of the federal government in four ways.

1. Congress does not have the authority in Article 1, Section 8 to establish a national church. However, the First Amendment makes this point explicit.

2. Congress does not have the authority in Article 1, Section 8 to abridge the free exercise or expression of religion within the states. However, the First Amendment makes this point explicit.

3. Congress does not have the authority in Article 1, Section 8 to abridge the freedom of speech or the press. However, the First Amendment makes this point explicit.

4. Congress does not have the authority in Article 1, Section 8 to prevent people from gathering peacefully and petitioning the federal government to address its complaints. However, the First Amendment makes this point explicit.

Purpose of First Amendment – Historical Example – Kentucky and Virginia Resolutions

Eight years after the federal Bill of Rights was ratified, President John Adams and the Federalist controlled Congress passed the Alien and Sedition Acts that, among other things, made it a crime to criticize the United States government, either house of Congress, or the President.

To fight these blatantly unconstitutional acts, James Madison authored the Virginia Resolutions of 1798 and sitting Vice President Thomas Jefferson anonymously authored the original draft of the Kentucky Resolutions of 1798. Jefferson’s third resolution explains and resolves the matter perfectly, and explains how the federal Bill of Rights, but namely the First Amendment and Tenth Amendment, are supposed to function.

Virginia and Kentucky Resolutions of 1798

Virginia and Kentucky Resolutions of 1798

Thomas Jefferson

Thomas Jefferson

“3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, 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”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.” (Emphasis added)

First Amendment Examples

– Congress passes a law establishing a national church.

o The law is unconstitutional since Congress was not delegated the power to establish a national church in Article 1, Section 8 and is explicitly barred from establishing a national church by the First Amendment and the Tenth Amendment. However, state governments could theoretically establish a state church or a state religion, subject to their own state constitution. Several states did have established state churches in the late 1700s and early 1800s. Religion was a matter reserved to the states to deal with.

– Congress passes a law making pornography illegal.

o The law is unconstitutional since Congress was not delegated the power to abridge the freedom of speech or the publication of nude pictures or video in Article 1, Section 8. Moreover, the First Amendment and the Tenth Amendment would explicitly bar Congress from making pornography illegal. However, state governments could make pornography illegal, subject to their respective state constitutions.

– Congress passes a law making pornography legal.

o The law is unconstitutional since Congress was not delegated the power to usurp the state governments and guarantee protection to certain types of speech and publication. The power and authority to make pornography legal or illegal is reserved to the state governments, subject to their respective state constitutions.

– Congress passes a law prohibiting prayer in public schools.

o The law is unconstitutional since Congress was not delegated the power to abridge the free exercise of religion. Moreover, the First Amendment and Tenth Amendment explicitly bar Congress from abridging the free exercise of religion.

– The U.S. Supreme Court declares prayer in public school is unconstitutional.

o This decision is itself unconstitutional and should be ignored by the state governments. Nowhere in the Constitution did the state governments delegate a power to the federal government or to the federal courts to abridge the free exercise of religion, or to prevent prayer from occurring on public property or at state institutions. These religious matters were reserved to the states under their respective constitutions.

United States Constitution – 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; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.