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CHAPTER 1

BRIEF HISTORY OF THE FIRST AMENDMENT

BEFORE WE DIVE INTO THE SUBSTANCE OF THE First Amendment, let's start with a bit of history. The Founding Fathers did not think up the ideas of freedom of speech, religion, the press, and the rest all by themselves. Many of these rights had a long pedigree extending back into the misty recesses of the Middle Ages, and their implementation in the American system was a far messier process than you might have learned about in high school.

The foundational document for the First Amendment, and indeed the entire structure of constitutional government, is everyone's favorite piece of 13th- century moldy parchment: the Magna Carta, or Great Charter. That historic document arose out of a feudal dispute between England's King John I (of Robin Hood fame) and his power-hungry barons. In 1215, the beleaguered king was forced literally at sword-point to sign a piece of paper that placed limits on his power. The Magna Carta recognized the barons' right to a speedy trial and due process of law, protected them from arbitrary arrest and seizure of property, and forbade the king from levying taxes without consent. Far from being a liberal document that benefited the common man of the kingdom, the Magna Carta served the interests of the nobility — but at least it was a start!

The circulation of ideas brought about by the printing press and the renewal of conflict between the king, nobility, church, and parliament in 16th-century England led a newly educated class to reimagine the relationship between the individual and the state. To them, the Magna Carta embodied ancient freedoms and natural rights that all people possess and that government cannot infringe upon. Parliament attempted to reign in the autocratic Charles I in 1628 by having him ratify the Petition of Right, which reaffirmed the Magna Carta and went further by both guaranteeing the right of habeas corpus and requiring consent of the owner to quarter troops in a private home (both also covered in the U.S. Constitution). Such measures were short-lived, however, as the outbreak of the English Civil War led to the beheading of Charles I in 1649, tabling for the time any further discussion about rights of speech, religion, assembly, and the press.

The English Civil War also had a formative impact on the North American colonies that would one day become the United States. The war fractured the colonies along political, religious, and geographical lines. Fiercely independent New Englanders favored the Puritanical Parliamentarians, and in 1641 the Massachusetts General Court passed a comprehensive Body of Liberties that guaranteed to all its people, for the first time, the rights to speech, assembly, and petition. Anglican colonies such as Virginia sided with the Crown, while Catholic Maryland saw the only battle of the English Civil War fought on American soil.

However, the seed of constitutionalism continued to blossom in the colonies both during and after the war, as the Maryland Toleration Act of 1649, the Rhode Island Charter of 1663, the West Jersey Concession and Agreement of 1676, and the Pennsylvania Charter of Privileges of 1683 all guaranteed religious freedom to Christians regardless of denomination — a very liberal gesture in its day!

The next formative event in First Amendment history was England's Glorious Revolution of 1688. Protestant parliamentarians, sick of the growing Catholicism and authoritarianism of King James II, decided to give him the royal boot and invited William of Orange, the leader of the Netherlands, to rule as a co-monarch with James's daughter, Mary. Upon the downfall of James II, revolts broke out throughout New England, New York, and Maryland, as disgruntled colonists forcibly ejected their hated royal governors. William and Mary, within months of taking power, ratified the most comprehensive grant of rights and freedoms to date: the Bill of Rights of 1689, the direct, lineal ancestor of the U.S. Bill of Rights.

This transatlantic conception of rights continued to evolve over the course of the 18th century, as the famous English jurist William Blackstone systematized and rationalized the messy English common law system (more about this in Chapter 2) in his magnum opus, The Commentaries on the Laws of England (1765–69). In that work, equal parts legal treatise and political polemic, Blackstone describes how the English common law system uniquely preserved the ancient rights and freedoms of the individual against absolute monarchy. Blackstone's masterful combination of law, politics, and philosophy was a hit among the new American elite. Over 2,000 copies were sold in Philadelphia alone, and Blackstone's hefty multivolume work graced the bookshelves of such colonial luminaries as Alexander Hamilton, John Jay, John Adams, John Marshall, and Thomas Jefferson.

Despite the growing belief that there were areas of individual life that should be free of state interference, the law in America lagged behind that principle for most of the 18th century. Many of the colonies continued to have official churches and afforded little protection to speech. The coming of the American Revolution began to change this dynamic. Under the direction of Thomas Jefferson, Virginia in 1776 became the first colony to pass a comprehensive Declaration of Rights, guaranteeing the "inherent rights" of freedom of speech, religion, and the press, among others. The exigencies of war quieted most philosophical discussion of individual rights for the time being, as the fledgling nation fought for its more immediate right to exist.

The Treaty of Paris recognized American independence in 1783, and for the next six years the country continued to operate under the loose legal framework of the Articles of Confederation. That rickety structure proved unworkable, however, and the entire document was scrapped in favor of a new constitution. Representatives of the various states met for a constitutional convention in Philadelphia during the summer of 1787 and created a new governing document for the nation. Left out, at least at first, was an explicit guarantee of individual rights.

The failure to include a bill of rights in the original Constitution almost sank the entire venture. Some of the biggest names of the revolutionary cause came out against it and urged their state legislatures not to ratify the document. Alexander Hamilton argued forcefully in favor of ratification without a bill of rights, explaining in the Federalist Papers that such an explicit guarantee was not only unnecessary but also counterproductive. It could be viewed, he argued, as a grant of rights from the government — a grant that might be revoked at whim — and limit the rights retained by the people only to those enumerated in the document.

Hamilton's argument did not carry the day, and many states, including his own New York, refused to ratify the Constitution if it did not contain a bill of rights. Sam Adams and John Hancock of Massachusetts came up with a compromise: the states would ratify the Constitution but draw up a list of amendments for the first Congress to take up that would form the Bill of Rights. Virginia's James Madison led that campaign and drafted amendments explicitly guaranteeing rights contained in the Magna Carta, the English Bill of Rights, and the various colonial charters. Three-fourths of the states voted in favor of the first ten amendments, and they became part of the Constitution on December 15, 1791.

The remarkable thing about this whole episode is that, after all the sound and fury over the necessity of a bill of rights, people seemed to forget about it almost as soon as it was adopted. The Supreme Court took a hands-off approach on the First Amendment until the 20th century. Why? We'll see in the chapters ahead.

THE SUPREME COURT: MEN (AND WOMEN SINCE 1981) IN BLACK

NO EXAMINATION OF THE FIRST AMENDMENT WOULD be complete without an overview of the institution responsible for its interpretation: the United States Supreme Court. In this chapter, we will discuss why the Supreme Court has the final say on First Amendment issues, how a First Amendment case makes its way to the Supreme Court, and the ways in which the justices attempt to determine the meaning of its passages.

Article III of the Constitution establishes the size, scope, organization, and role of the federal judiciary. It is amazingly short; you can fit most of the text on a cocktail napkin. Section 1 vests all judicial power in one Supreme Court and in "such inferior courts as the Congress may from time to time ordain and establish." This means that the only constitutionally mandated court is the U.S. Supreme Court. All lower federal courts are given the charming designation "creatures of Congress," meaning that they owe their existence to the legislature rather than to the Constitution. The rest of Section 1 requires that all federal judges hold their offices "during good behavior," meaning that they have life tenure unless impeached, and that Congress can't cut their pay — and that's it. All other important questions, even ones like how many judges should serve on the Supreme Court, are left unanswered.

Section 2 lays out the jurisdiction of the federal judiciary. Unlike state courts, which can hear any kinds of cases, federal courts can hear only specific types of cases. The most important for our purposes are cases dealing with the Constitution, federal statutes (laws passed by Congress), or treaties. Section 2 also lists the types of cases in which the Supreme Court has "original jurisdiction" (lawsuits that originate in there) — cases involving ambassadors, other public ministers, and those in which a state is a party. Most of the cases that the Supreme Court hears are appeals from lower courts.

Nowhere in Article III is there any mention of judicial review, the Supreme Court's ability to strike down laws that conflict with the Constitution. In fact, judicial review is not mentioned anywhere in the entire Constitution. So if the awesome authority to declare laws unconstitutional isn't actually in the Constitution, where does it come from? The short answer is that the Court gave itself the power in the 1803 case of Marbury v. Madison. The long answer is a bit more complicated.

One of the defining features of the Anglo-American legal tradition — and essential to understanding the importance of Marbury v. Madison — is the common law. As opposed to statutory law (written by a legislative body), common law is the type made by judges when they issue a legal ruling on a specific case. In a common-law system, judicial decisions carry the force of law under the principle of stare decisis (Latin for "stand by the decision"). What this means is that judges tend to follow the rulings set by other judges, and lower courts are bound to follow the rulings of higher courts in their jurisdiction for all similar cases; this creates binding precedents. Since the Supreme Court is the highest court in the United States, its rulings are binding on the entire country.

Are you ready to dive into the weeds of our first Supreme Court case? Let's set the scene: It's the year 1800 and the first political hand over in U.S. history is about to take place. The Federalist Party, which had dominated politics in the 1790s, got wiped out in the last election, losing both houses of Congress and the presidency. Before handing over power to newly elected Thomas Jefferson and his Democratic-Republicans, President John Adams appointed a number of Federalist judges in the waning days of his administration. Upon taking the oath of office, President Jefferson tells his secretary of state, James Madison, not to deliver any judicial commissions that hadn't already gone out the door. William Marbury, one of the Federalist judges awaiting his commission, did what lawyers do best — he sued the Jefferson Administration.

This is where the case takes a curious twist. Marbury didn't file his lawsuit in any old court; he filed it at the U.S. Supreme Court. Remember that the Supreme Court has original jurisdiction only in a limited number of cases, and none of them applied here. But Marbury was asking the Court to issue an order directing the government to take a specific action (the Latin term is a "writ of mandamus"), and Congress had passed a law granting the Supreme Court the power to hear such petitions. Marbury believed he was simply following the rules.

Presiding over the case was Chief Justice John Marshall, a committed Federalist; Marbury must have liked his chances. Writing the opinion of the Court, the chief justice made short work of the issue at hand. Yes, Marbury was entitled to his commission, Marshall wrote. But he didn't stop there. The chief justice went on to ask whether the Supreme Court was the right place for Marbury to file his lawsuit. While Congress had passed a law authorizing the Supreme Court to hear such cases, the Constitution granted no such authority. So Chief Justice Marshall had a decision to make: either uphold the statute, implicitly saying that laws passed by Congress can override the Constitution, or do something truly unprecedented by invalidating a law passed by Congress and signed by the president.

Marshall went about his task brilliantly. He started with the proposition that "[i]t is emphatically the province and duty of the Judicial Department to say what the law is" and that "[i]f two laws conflict with each other, the courts must decide on the operation of each." On that basis, Marshall framed the case as a contest between the Constitution and a statute, where only one side could prevail. Citing his oath to uphold the Constitution and the text of the Supremacy Clause (Article VI, Clause 2), which establishes the Constitution as the supreme law of the land, Marshall was duty bound to rule in favor of the Constitution and strike down the offending portion of the statute. Thus, Marbury lost his suit and John Marshall established the Supreme Court as the Constitution's ultimate arbiter.

Almost as soon as John Marshall gave the Supreme Court the awesome power of judicial review, however, he rendered it mostly toothless in the 1833 case of Barron v. Baltimore. Here, the Court held that the Bill of Rights applies only to the actions of the federal government and not state governments. This is why states in the early republic were allowed to maintain official churches, to take property without paying compensation, to imprison their citizens without trial, and to ban abolitionist speech, all without violating the Constitution.

Things began to change after the Civil War. The Thirteenth, Fourteenth, and Fifteenth Amendments were made specifically applicable to the states. The Fourteenth Amendment in particular marked a legal revolution, declaring explicitly:

No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Starting with the 1897 case of Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, the Supreme Court began to interpret this to mean that certain fundamental rights in the Bill of Rights apply to the states through a legal doctrine called incorporation.

Now that we understand the Supreme Court's power of judicial review and its common law authority, let's turn to the question of how a First Amendment case makes its way to that body's colonnaded doorstep. A good starting point is to recognize that the Constitution protects a person's rights against infringement only by the government. This point can't be stressed strongly enough. Regardless of what you might hear from coworkers or read in blog posts, a private person or organization can never violate your constitutional rights.

A constitutional case begins in either a lower federal court or a state court. We don't need to get too bogged down with procedure, but it's good to have a basic understanding of the structure of the judiciary to understand future cases. Federal trial courts are called U.S. District Courts, and intermediate federal appellate courts are called U.S. Circuit Courts. The entire country is divided up geographically, so that federal courts hear cases from within their respective regions. Standing above them all is the U.S. Supreme Court. Outside the federal system, individual states also have their own systems of trial, intermediate appellate, and supreme courts.

The U.S. Supreme Court is also special because it gets to choose what cases it wants to hear. If you want the Supreme Court to hear your appeal, you need to petition it for what's called a writ of certiorari. The justices (well, their law clerks) comb through thousands of petitions to find the most weighty and meritorious cases to hear. The Court takes on only 80-100 cases each year, making the acceptance rate about 1%. And if your case is one of the lucky winners that actually manages to get in front of the justices, how do they rule on it? Since the text of the First Amendment contains few specific guidelines, two key factors determine how the Court resolves a case: the standard of review and the judicial philosophy of each judge.

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Excerpted from "First Amendment: For Beginners"
by .
Copyright © 2018 Michael J. LaMonica.
Excerpted by permission of For Beginners LLC.
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