Bill of Rights, Amendment I (Temecula Constitution Class)

Temecula Constitution Study, February 3, 2011




Bill of Rights, Amendment I




Bill of Rights:




The first ten amendments to the United States Constitution are known as the "Bill of Rights." James Madison was asked to write them so as to help clarify the federal government's limitations when it comes to our inalienable rights as citizens of the United States of America. The Bill of Rights was adopted in 1791.




The Bill of Rights covers freedom of religion, freedom of speech, freedom of the press, the rights of peaceful assembly and petition, the rights of the people to keep and bear arms and form a "well-regulated militia," the rights to private property, fair treatment for accused criminals, protection from unreasonable search and seizure, freedom from self-incrimination, a speedy and impartial jury trial, and representation by counsel.




More importantly, the Bill of Rights protects State Sovereignty by protecting the freedom of states from intrusion by the federal government.




The Bill of Rights were designed to limit the power of the federal government through clarifying what the federal government cannot infringe upon. The 14th Amendment has been erroneously interpreted as enabling the Bill of Rights to be applied to the States as well. In fact, as recently as last year in the McDonald v. Chicago case, the courts applied the 2nd Amendment to the city of Chicago.




In its original historical context, the Bill of Rights was conceived as a limitation only on the federal government, leaving the States free to legislate in the prescribed areas as they deemed fit. The State constitutions were supposed to protect the rights of the citizens from state governments, should the people remain active enough to ensure such.




One must understand that in the strictest sense the Founding Fathers intended the Bill of Rights to not be a guarantee of individual freedoms, but a limitation of federal authority.




We have been conditioned to believe that the Bill of Rights applies to the States as well, as shown in the Supreme Courts' decision regarding McDonald v. Chicago. Problem is, aside from a misinterpretation of the 14th Amendment, there are no sources by any of the Founding Fathers which argues that the Bill of Rights was originally intended to be applied at the state level.




Why not the states? The founders of this country were confident that We The People could control our own state officials. Besides, most state constitutions already had their own bills of rights. It was the distant central federal government the people truly feared.




Part of our evidence that the Bill of Rights does not apply to the States is that in some of the amendments there were parts that were initially proposed by Madison that would have limited state governments, such as "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." However, these provisions were not approved by Congress. In fact, in regards to Amendment I, and its disallowance of an established church, many of the states had established state churches up until the 1820s. As for the freedom of the press, a number of the Southern states, beginning in the 1830s, could ban abolitionist literature. In the 1833 case Barron v. Baltimore, the Supreme Court specifically ruled that the "Bill of Rights provided security against the apprehended encroachments of the general government — not against those of local governments."




In short, according to the original intent of the Founding Fathers, The Bill of Rights was intended to be a bar on the actions of the federal government.




Those who contend that the Bill of Rights was intended to apply to the States cannot offer any evidence because their argument is philosophical, rather than historical. To try to force something into place as evidence, they use the 14th Amendment as part of their argument. However, based on the original intent, and the language of the 14th Amendment, there is nothing that solidly suggests the Bill of Rights are to be applied to the States.




The argument is that the Bill of Rights addresses our inalienable rights, and no government may take those rights away, therefore it is reasonable to these people that the Bill of Rights must apply to the States. What would give the state governments the authority to infringe on those rights when the Federal government cannot?




That is what the State constitutions are for.




I find it fascinating that these folks are not willing to trust themselves to be active enough locally, nor place trust in their State constitutions, to protect the rights of the citizens from the States, yet they are willing to trust the federal government and its Constitution, to protect the rights of the citizens from the States.




Remember, the States are competing for residents, and tax dollars. Therefore, it is in their best interest to protect the rights of their citizens in a manner consistent with the intention of the Bill of Rights. If a State does not protect the rights of the Citizens, the people can vote with their feet and leave the State. Then where would that leave the State?







1st 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.




Freedom of Religion:






The first part of the First Amendment addresses religion. The frame of reference of the Founding Fathers was Europe, and more specifically, England. In England the Church of England greatly influenced the centralized governmental system, and the politicians greatly influenced The Church. There was no separation between powers of the king and the church, it seemed. The problem, the Founding Fathers reasoned, was the establishment of a State Church. Therefore, to protect the governmental system from the influence of religion, the founders determined that the federal government could not establish a state religion.




The second part of that clause, however, was also specifically designed to protect the church from the government by instructing government to not prohibit the free exercise of religion.




Freedom of religion was a big deal with the Americans. Even the textbooks in the public school system reveals that the Pilgrims first came to The New World in search of religious freedom.




However, in today's society, there exists the belief in a concept known as "The Separation of Church and State." The concept has determined that the church is somehow the enemy, and that any mention of God in the same breath with the federal government is a no-no.




To understand the error of the concept of "Separation of Church and State" in today's society, we must go back and discover the origination of the idea. To understand the truth, we must recognize the writings of the founders, as well as grasp the history of the colonies. One of the best ways to do this is to carefully read the writings of the Founding Fathers, including the series of letters between the federal government and the Danbury Baptists of Connecticut, culminating in the letters to Thomas Jefferson after he became President of the United States in 1800.




Each of the colonies, understand, began as a collection of like-minded religious folk that wanted freedom for their religion (not necessarily freedom of all religions). In Jamestown, in 1610, Dales Law mandated the Jamestown colonists to attend Anglican worship. The law went so far as to have provisions against criticism against the church. Violation of Dales Law could even lead to death. The Puritan Colonies to the north had similar laws, even setting up their governments in accordance with Puritan Law. Connecticut was one of those Puritan Colonies, and in 1639 the colony enacted "The Fundamental Orders of Connecticut." The law set Connecticut up as a theocracy, disallowing non-Puritans from holding office. The government was the church, and the church was the government.




Understand, this practice of religious preference was not limited to Connecticut. All of the States enforced established religions, except Pennsylvania and Rhode Island.




Though Pennsylvania was largely a Quaker state, William Penn believed that religion should be free from state control, so Pennsylvania did not persecute non-Quakers. However, in Pennsylvania, in order to hold office, you had to be a Christian.




Rhode Island, founded in 1636, was based on the principle of religious liberty, and took in folks who were trying to escape the religious persecution of the other colonies.




Back to Connecticut, in the Puritan dominated landscape, there was a group of Baptists in Danbury, Connecticut who were tired of being treated like second class citizens.




Thomas Jefferson drafted the Virginia Act For Establishing Religious Freedom in Virginia, and with James Madison's assistance, finally got it enacted into law in 1786. So after many letters to President Adams that resulted in no assistance, the Danbury Baptists were excited about Jefferson winning the presidential election in 1800. Finally, they would have someone in office that would help them in their plight for religious freedoms in Connecticut.




The Danbury Baptists wrote to Jefferson to congratulate him for his win, and to appeal to him for help. Thomas Jefferson responded with a letter that carries the line, "a wall of separation between church and state," which has become the source from which the infamous concept of Separation of Church and State was eventually derived from.




The Founding Fathers desired that Americans be free to worship as they wished, without being compelled by government through an established religion. The key, however, is that they not only did not want the federal government compelling a person through laws regarding religion, but that the government shall not “prohibit the free exercise thereof.”




Thomas Jefferson, as indicated in his letter to the Danbury Baptists, and his other writings, was against the government establishing a “State Church.” However, he also believed that men should be free to exercise their religion as they deem fit, and not be forced to follow a government mandate that may prohibit religion.




The Danbury Baptists were concerned over local religious freedoms, but Jefferson was clear, the federal government could not mandate anything in regards to religion. It is a State issue, and the Danbury Baptists needed to address the issue themselves. Jefferson’s reference to a wall of separation was an explanation that the federal government cannot prohibit the free exercise of religion for any reason, including on public grounds, but if a state was to prohibit the free exercise of religion, or establish a state church, it was an issue that must be resolved at the state level.




Freedom of Speech and Freedom of the Press:




The point of including in the Bill of Rights the freedom of speech, and of the press, was specifically designed to protect political speech. The Founding Fathers believed that freedom hinged on the freedoms of speech and the press. In fact, Benjamin Franklin wrote in The Pennsylvania Gazette, April 8, 1736, regarding the American doctrine behind freedom of speech and of the press:




Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.




James Madison in 1799 wrote, “In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law.”




Freedom of the Right of the People To Peaceably Assemble, and to Petition the Government for a Redress of Grievances:




The right to peaceably assemble means that citizens may peacefully parade and gather, demonstrate support or opposition of public policy. This part of the First Amendment is closely tied to Freedom of Speech, guaranteeing one's ability to express one's views by freedom of speech and the right to peaceably assemble.




The need to protect the right to peaceably assemble was not a new concept during the Constitutional Convention. Before the Bill of Rights, the Declaration and Resolves of the First Continental Congress declared on October 14, 1774:




The inhabitants of the English colonies in North-America, by the immutable laws of nature, the principals of the English constitution, and the several charters or compacts, have the following rights: They have a right peaceably to assemble, consider their grievances, and petition the king: and that all prosecutions, prohibitory proclamations, and commitments for the same are illegal.




In 1776, Pennsylvania's declaration of rights guaranteed peaceable assembly, as well, being the first state to recognize this right.




Originally, the right to assemble was considered less important than the right to petition. Now, many historians consider the two to be equally important, and to actually compliment each other.




The Founding Fathers felt that the right to assemble, and petition the government for a redress of grievances, were important keys to protecting States' Rights, and the rights of the people, from the federal government. The need to assemble, to come together and share common beliefs and act upon those beliefs, is what began the drive for independence, and ultimately what led to the American Revolution. The right to assemble and petition the government for a redress of grievances, the Founding Fathers believed, was one of the primary tools available to the citizens in their drive to stop tyrannies before they could take hold.




The right to peaceable assembly provides the opportunity for all citizens to participate in America's political life and in the electoral process. A recent example of this inalienable right in action is the Tea Party Movement. The Tea Party rallies are peaceful assemblies. These rallies are protected by the Constitution when they are for a lawful purpose and are conducted in an orderly manner and publicizes some type of grievance. Many groups and organizations use assembly as a way to show support for an idea or dispute, as characterized by the Tea Party.




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The Virginia Act For Establishing Religious Freedom




Thomas Jefferson, 1786







Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind; that our civil rights have no dependence on our religious opinions, more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to the offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.

Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.




And though we well know this Assembly, elected by the people for the ordinary purposes of legislation only, have no powers equal to our own and that therefore to declare this act irrevocable would be of no effect in law, yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.




http://religiousfreedom.lib.virginia.edu/sacred/vaact.html
















Letter to Thomas Jefferson




Danbury Baptist Association's letter to Thomas Jefferson, October 7, 1801.



Sir, — Among the many millions in America and Europe who rejoice in your Election to office; we embrace the first opportunity which we have enjoyd in our collective capacity, since your Inauguration, to express our great satisfaction, in your appointment to the chief Majestracy in the United States; And though our mode of expression may be less courtly and pompious than what many others clothe their addresses with, we beg you, Sir to believe, that none are more sincere.




Our Sentiments are uniformly on the side of Religious Liberty — That Religion is at all times and places a matter between God and individuals — That no man ought to suffer in name, person, or effects on account of his religious Opinions - That the legitimate Power of civil government extends no further than to punish the man who works ill to his neighbor: But Sir our constitution of government is not specific. Our ancient charter together with the Laws made coincident therewith, were adopted on the Basis of our government, at the time of our revolution; and such had been our Laws & usages, and such still are; that Religion is considered as the first object of Legislation; and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degradingacknowledgements, as are inconsistent with the rights of freemen. It is not to be wondered at therefore; if those, who seek after power & gain under the pretense of government & Religion should reproach their fellow men — should reproach their chief Magistrate, as an enemy of religion Law & good order because he will not, dare not assume the prerogatives of Jehovah and make Laws to govern the Kingdom of Christ.




Sir, we are sensible that the President of the United States, is not the national legislator, and also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President, which have had such genial affect already, like the radiant beams of the Sun, will shine and prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth. Sir, when we reflect on your past services, and see a glow of philanthropy and good will shining forth in a course of more than thirty years we have reason to believe that America's God has raised you up to fill the chair of State out of that good will which he bears to the Millions which you preside over. May God strengthen you for the arduous task which providence & the voice of the people have cald you to sustain and support you in your Administration against all the predetermined opposition of those who wish to rise to wealth & importance on the poverty and subjection of the people




And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Mediator.




Signed in behalf of the Association.

Nehh Dodge

Ephram Robbins The Committee

Stephen S. Nelson




http://www.stephenjaygould.org/ctrl/dba_jefferson.html













Jefferson's Letter to the Danbury Baptists




The Final Letter, as Sent




To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.




Gentlemen,




The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.




Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.




I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.




Th Jefferson

Jan. 1. 1802.





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