First Amendment to the United States Constitution

Friends and neighbors,

The United States Constitution sets out the basic rights of Americans in relation to their government. Although this document may have been written almost 235 years ago, it remains a unique and exceptional symbol of freedom and is used every day in our lives. This week, I will begin a series of weekly emails commenting on each of the 10 amendments that make up our Bill of Rights.

Reading the newspaper, peacefully gathering to support or oppose legislation, and attending religious services are all core activities, along with countless others, that are protected by the First Amendment to the US Constitution.

The First Amendment reads as follows:

Congress will make no law regarding the establishment of a religion or prohibiting the free exercise; or restricting freedom of speech or of the press; or the right of the people to assemble peacefully and seek redress from the government for their grievances.

There are six clauses: establishment, free exercise, freedom of speech, freedom of the press, peaceful assembly and redress of grievances.

Religious clauses:

The first clause of the First Amendment is known as the Establishment Clause. The second clause is known as the free exercise clause. Our founding fathers, like Thomas Jefferson and James Madison, criticized attempts by some to require individuals to support certain sects of Christianity. Others feared that different sects would be banned. Both clauses doubly emphasize to Congress that they could not establish a religion nor prohibit the free exercise of religion because it was so important to be explicit on this issue. Having the freedom to publicly exercise one’s religious beliefs is a protected right.

School prayer, aid to parochial schools and the display of the 10 Commandments or Nativity scenes on government property are all issues that have arisen under the Establishment Clause.

This clause has been interpreted by the Supreme Court, in Lemon vs. Kurtzman ruling, to require that laws must (1) have a secular legislative purpose; (2) its main principle or effect must be that which neither advances nor inhibits religion; and (3) the law must not favor excessive governmental establishment with religion.

If this test sounds confusing, that’s because it is. Many Supreme Court justices wrote that this test was unworkable, but to this day it remains the standard by which to judge laws that allegedly violate the Establishment Clause.

A corollary of the establishment clause is the free exercise clause. This clause prohibits Congress from passing laws that prevent the free exercise of religion.

Congress responded to the confusion by passing the Religious Freedom Restoration Act of 1993. The law requires that any charge imposed on religion be necessary to further a compelling government interest and that the charge also be the least restrictive way to further the government interest. It also requires that similar activities cannot be prohibited simply because their content is religious – specifically using a theater and a church as an example.

I believe that these two clauses were correctly placed at the beginning of the first amendment. Our founders recognized that freely practicing one’s religious faith requires that the government not force its citizens to endorse any particular religion.

Freedom of expression:

As we have seen with religious clauses, Congress and states can make laws that restrict these essential rights. But they cannot do so without a constitutional justification.

The Speech Clause has been interpreted by the Supreme Court as generally permitting speech unless it falls into one of the following categories: advocacy of illegal activity, defamation, obscenity, genuine threats, or child pornography. This leaves a lot of room for differences of opinion. If we can only talk about what “others” approve of, we don’t have freedom of expression.

Business, academic and political speeches also fall under this clause. The Supreme Court reaffirmed the protections of political speech and spending under the First Amendment in its Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission the decisions. In general, the court respects this speech and using our money to facilitate our speech is protected speech.

Freedom of press:

Another important right in the First Amendment is contained in the press clause. This right is also considered one of the fundamental rights by the Supreme Court. Although similar to the speech clause and often invoked in conjunction with it, the press clause prohibits Congress and the states from any censorship before or after publication. Some content-based regulations have been upheld by the Court for television and radio because the government allows the limited number of frequencies.

Freedom of Petition and Peaceful Assembly:

Tracing its roots to Magna Carta, the right to ask one’s government to redress one’s grievances is a right I see daily. When constituents email me, call me, or write letters asking me to support or oppose an issue, they are exercising the fundamental right to petition their government. While the early cases described the right of assembly as merely subordinate to the main right of petition, the distinction has largely been removed.

It is also important to note that the Founders wrote that Congress cannot infringe on the right to peaceful assembly. While municipalities can restrict protests or gatherings using time, place and content-independent restrictions, the right to gather as a group is a right we all enjoy.

We must retain our constitutional system where citizens are free to question, criticize or support issues of their choosing without repression or censorship. Oppressive countries do not allow the rights we have in the US Constitution. But it is important that each of us rightly uses our freedoms and rights knowingly and responsibly.

Next week I will write about the Second Amendment and Supreme Court cases that deal with the right to own and bear arms.

contact me

I love to hear you talk about our Constitution and the rights it gives us. You can call me at 651-296-5655 or email me at [email protected] Please also take the time to talk with others about our timeless Constitution.

Sincerely,

Married

About Harold Hartman

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