January 20, 2006 - the First Amendment is about personal liberty

For the past couple of weeks, I've been trying to wrap up a book I've been writing.

Most of it was done, but I wanted to do some in-depth research on a topic near and dear to me: the First Amendment. I've learned a lot.

There are two ideas about the United States Constitution. One of them is that the Founders were unanimously wise, prescient, and intended to give us precisely the rights we take for granted today.

That's wrong. They were plenty smart, all right. If I could travel back in time, these are definitely the folks I'd want to hang out with.

But seers they were not. They never imagined talk radio, the Internet, or the bazooka. It never occurred to them that labor unions might picket public schools, or loudspeakers blast away outside hospitals.

Another idea was that the Founders were early born-again Christians, determined, in the words of James Dobson of Focus on the Family, "to perpetuate a Christian order."

Wrong again.

"...the government of the United States of America is not in any sense founded on the Christian Religion." (Article 11, Treaty of Peace and Friendship between The United States and the Bey and Subjects of Tripoli of Barbary, 1796-1797.)

In addition to the plain language of the Constitution (the first national Constitution in the western world that used neither the words "God" nor "Jesus Christ"), there was a provision that no religious test should be required for the holding of any public office.

During the ratification of the Constitution, a Christian preamble was proposed -- and firmly rejected.

I've learned three key lessons through my studies about the First Amendment.

1. The Constitution in general, and the First Amendment in particular, was not intended to describe a fully-imagined state. It mostly detailed some of the key things the United States should NOT do -- based on the most egregious of England's laws.

2. The "wall of separation" was real. The intent was more than just to prevent the state from interfering with religion. It was also to prevent religion from interfering with the state. Or as James Madison said, "Religion and government will both exist in greater purity, the less they are mixed together."

3. The real story of the Constitution, and of the First Amendment, is one of evolution toward individual liberty.

Originally, the Constitution withheld the vote from women, from slaves, and from people who did not own property.

Over the centuries, our government has tried to extend the right of equal protection under the law to everyone. Or at least, that is the clearest modern intent of the Supreme Court.

The central idea of our government -- that it exists to serve the people, not the other way around -- is almost as radical today as it was when it was formed.

I've learned something else: the greatest challenges to our freedoms come during a time of war.

There was the Alien and Sedition Act, enacted in 1798 (amid the threat of war with France). There were many limitations on free speech before and during the Civil War.

In 1914, at the height of the patriotic fervor of the First World War, a Pennsylvania town enacted a law requiring every student in its schools to salute the flag in the manner of a Fascist salute (right arm raised stiffly, palm forward) while reciting the Pledge of Allegiance.

In World War II, even weather reports were suppressed.

But none of this was new, not really. There have always been people eager to seize the power of government, either to compel acts of obedience, or to mandate silence.

The essential idea of the First Amendment, however, was utterly new: the JOB of the state was to assure the freedom of individuals to say, or not say, pretty darn close to anything they pleased.

And so it is.